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Presidents' Messages

Institutional Pluralism

By John H. Garvey
The following is the Presidential Address of John H. Garvey before the House of Representatives at the 2008 Annual Meeting in January.

I consider it a great honor to have been elected President of the Association of American Law Schools. I mean this most sincerely. If I look at it dispassionately, I must confess that I am an unlikely candidate. Not for lack of attachment to the Association. I have been involved in its affairs for 32 years as member of the congregation, speaker, section head, committee chair. I have met many of my best friends there. So I don’t mean “unlikely” in that sense. I feel as though I owe a great deal to the AALS, and a term as President won’t begin to repay the debt.

But I sometimes feel as though my relation to the Association has been like Disraeli’s to Gladstone – the leader of Her Majesty’s Loyal Opposition. Disraeli was the leader of the protectionist wing of the Conservative Party, and often at odds with William Gladstone, the Liberal Party leader and four times prime minister. Though I esteem the Association above all things, am attached to it by bonds of personal friendship and duty, and am prepared to defend it against all enemies foreign and domestic, yet I find I am often a critic at home in her councils.

Let me give some examples. Most of my career I have taught at a public university, the University of Kentucky. But for the last 14 years I have taught at Catholic schools – Notre Dame and Boston College. Those schools, like a number of religiously affiliated law schools, have a particular interest in recruiting faculty who feel a special commitment to the university’s religious mission. At BC and Notre Dame this doesn’t mean just Catholics; but it does imply a certain appreciation for the link between faith and one’s vocation as a lawyer. This culture is part of the appeal of religiously affiliated law schools. I found myself wondering, is there something the AALS can do to help them find what they are looking for?

I would not want to ask candidates, on the AALS Recruitment Conference form, to list their religious affiliation. It’s not a crazy idea. We ask about race and sex. But it would be wrong for state schools like Kentucky to consider religious affiliation, so why tempt them? I would feel uncomfortable about injecting religion into hiring practices even at private schools like Cornell and Tulane (to pick two non-religious private schools). The solution I proposed was to let religiously affiliated law schools hold a reception open to all candidates, and let candidates self-identify. It took a few years to sell this idea to the Association. The chief reservation was that most standard of bureaucratic concerns – “If we let you do it, we’re going to have to let 100 other groups do it too.” I suspect there was also an element of uncertainty – about allowing avowedly religious groups to play an approved role in the recruiting process. There is in our culture a well respected school of thought which holds that we shouldn’t discuss religion in public, far less give its adherents a semi-official role in things like hiring, education, zoning, etc. Eventually we settled on the idea that the Section on Law and Religion could hold a reception, which we now do.

Here is another example of why I sometimes feel like Disraeli. The AALS, like the ABA, does a sabbatical review of member schools. Like most deans I nurse an anti-regulatory grudge. I feel that the ABA lays unnecessary stress on things like library circulation hours, terms and conditions of employment for clinical faculty, listing of elective courses in law school bulletins, and so on. Like most deans I feel the ABA would do better at its job if it consulted more often with deans. I used to have many of these complaints about the AALS’s membership review process. During her term as President Mary Kay Kane did the Association a great service by laying renewed emphasis on the core values of the AALS (scholarship, teaching, academic freedom, diversity). But as people at schools who have recently gone through a membership review process can testify, we have not yet taken that point entirely to heart. I still sometimes find myself complaining that we regulate in too much detail.

So I consider it the sincerest kind of compliment that the Association would ask me, a member of the opposition and a frequent (though loyal) critic to be President for a year. I hope I can repay your confidence.

Institutional Pluralism

What I love best about the Association is its role as a learned society – a place where legal academics can gather to talk about ideas. True to that conviction, I want to propose that during the next year we spend time thinking about an idea. This idea occurred to me in the first instance because of my attachment to Catholic higher education. My wife and I have sent our children to Catholic colleges because we want them to be able to integrate their faith with their understanding of art, literature, philosophy, politics, and science. I think there is a place for this kind of comprehensive wisdom in legal education too. Let me offer a few examples.

Catholics believe in the sanctity of human life. This is connected to some theological ideas about creation and the incarnation. This belief has obvious implications for how we think about criminal punishment. It is difficult, for example, to accept the idea of general deterrence as a justification for punishment. It is also hard to accept the idea of capital punishment. Modesty compels me to admit that Catholics have been slower to come to this conclusion than some other Christian (and non-Christian) churches. But that doesn’t undercut my point that there is a connection between law and theology.

Catholics believe we should have a special concern for the poor. The Beatitudes (Mt. 5:1-6) and the parable of the Last Judgment (Mt. 25:35-40) teach that the poor are especially blessed, and that God will judge us according to how we care for them. The U.S. Catholic Bishops’ pastoral letter, Economic Justice for All (1986), argues that these ideas have a bearing on how we think about unemployment, welfare policy, agricultural programs, and our attitude toward developing nations.

I could offer further examples, but you get the idea: a law school where these kinds of ideas are in wide circulation is going to have a different intellectual climate than the University of Kentucky.

This is, you might say, a fairly parochial point of view. So it is, though as my predecessor Bob Drinan, SJ, was fond of saying, there are 14 Jesuit law schools in America, and they educate 10% of the profession. And there are 25 Catholic law schools in all. And if you look at the mission statements of other religiously affiliated law schools – Baylor, BYU, Cardozo, Pepperdine – you will find echoes of what I have said in 43 of the AALS’s member and fee-paid schools.1

As I talked to my friends, particularly deans, at other schools, though, I found that the class of religiously affiliated law schools was just a subset of an even larger idea. Consider another class of schools – those at historically black colleges and universities like Howard, NC Central, Texas Southern. In 1935 Charles Hamilton Houston wrote an article about the special mission of Howard Law School.2 He pointed out how few black lawyers there were in states like Alabama (4), Mississippi (6), and Louisiana (8). There were a lot of white lawyers in those states but, he said, experience has proved that the average white lawyer, especially in the South, cannot be relied upon to wage an uncompromising fight for equal rights for Negroes. He has too many conflicting interests, and usually himself profits as an individual by that very exploitation . . . which, as a lawyer, he would be called upon to attack and destroy.

Houston conceived for Howard a special mission to serve this underserved population. This would mean a different academic emphasis. The law of business associations might focus on small business rather than multinational corporations; the law of carriers on the passenger or shipper rather than the management. Life and fire insurance would draw more attention than marine insurance. The HBCUs are like religiously affiliated schools in several respects: (1) they have a distinctive mission and point of view that influences the intellectual culture. (2) This may have an impact on the subject matter of the curriculum. (3) They hold a special appeal for some groups of faculty and (4) students. There is, in the universe of law schools, a kind of institutional pluralism. Boston College and Howard are different from other schools, in different ways.

But they are not alone in being different. Consider a third class of schools – ones with a unique point of view, like George Mason. Henry Manne, the godfather of that law school, wrote about his vision for it in 1993. The original plan called for students to “major” in one of several academic fields – economics, political science, technology, or behavioral science. That was too expensive, so George Mason decided to concentrate on economics. A lot of fields in law made use of economics. There were enough academics trained in Law and Economics to build a faculty. Students would be introduced to the culture through a 6-hour course in Quantitative Methods. And nearly every course would have a Law and Economics flavor.

The antonym of George Mason might be a school like Antioch (which eventually merged into UDC).3 Antioch was started by Edgar and Jean Cahn in 1972 to train public interest lawyers through a comprehensive clinical method. During their first two weeks in school students would live with families in poor areas of Washington. Before the first year was out students and their teachers would work at providing free legal services to these clients.

Then there are schools that have a special subject matter focus rather than a point of view – environmental law (Vermont, Lewis & Clark), intellectual property (Franklin Pierce).

Finally (maybe I should have started here) there are the state law schools – more than 50. State schools often have a well defined mission to a particular population. The University of Kentucky, to which I have a special attachment, used to negotiate with the legislature about how many out-of-state students it could take. They are a distinct minority, and of course they pay more tuition. UK has a well developed specialty in Equine Law. Its environmental program and one of its journals pay special attention to coal mining. The Law School and some of its faculty also perform research functions for the Kentucky General Assembly.

Its Advantages

The examples of institutional pluralism are so familiar and so numerous that we might miss the point about how counter-cultural it is to celebrate the idea. In our everyday thinking about law schools we tend to measure them by the same yardstick. The ABA has its standards. The AALS has its four core values. The U.S. News lines schools up on one axis and ranks them from 1-180.

On the whole I think that cultivating differences is a better thing for legal education. It may be good for consumers of legal education in the way varieties of mustard are good for consumers of picnic food. Prospective law students have different tastes. Charles Hamilton Houston’s ideal of a school that taught its graduates to undertake a career of service and fight for equality might appeal to a young African American from Alabama. BYU’s offer of an opportunity to integrate the study of law with service and spiritual growth might appeal to a young Mormon just back from a mission in Argentina. A young woman who wants some day to be governor of Kentucky would have reasons for preferring UK over Duke.

Institutional pluralism might also be good for the progress of legal thought. We are not as comfortable talking about truth as John Stuart Mill was when he wrote On Liberty. But most of us acknowledge the idea of forward progress in the intellectual life. Einstein’s theory of general relativity explains better how gravity works than Newton’s system does. Let me mention five ways institutional pluralism might contribute to this effort.

One obvious advantage of having a group of people using the same tools or thinking about the same problem is that more people know more. On weekends my wife and I do the crossword puzzles together, and we go more than twice as fast as either of us can working alone. She knows a lot of words I don’t. This is hardly surprising. We read entirely different kinds of books and magazines and have for years. Let us call this advantage more data.

A second advantage of having several people interested in the same problem might be parallel processing. Think of my wife and me doing the daily Jumbles rather than the crossword puzzle. These are five anagrams that answer a riddle. The first clue might be enako, which you can unscramble to spell oaken. The second might be droven (vendor), and so on. Here we go faster not because we have more data but because we can run through two sets of permutations at once.

A third advantage to collective intellectual effort is the one we usually have in mind when we talk about mentoring. I read Walter Isaacson’s biography of Einstein this summer. You often hear it said that Einstein was a better physicist than a mathematician. The point is exaggerated, but there is some truth in it. When Einstein moved from Prague to Zurich in 1912 he asked his friend Marcel Grossmann for help with non-Euclidean geometry. It was the introduction to Riemann’s metric tensors that allowed Einstein to capture the general theory of relativity – the idea that gravity could be defined as the curvature of space-time.

A fourth feature of institutional pluralism – I’m not sure whether to call it an advantage or an aspect – is what we might call the institutional aesthetic, or style, or culture. Consider the Venetian school of painting in the 15th and 16th century – Bellini, Giorgione, Titian, Tintoretto, Veronese, Lotto. There were things these painters shared and collectively developed. One was an interest in light and color that anticipates the impressionists by four hundred years. (Think about the Venus and the Lute Player at the Metropolitan Museum.) A second was a distinctive style of brushwork that gave their paintings a smooth appearance. A third was the use of oils, a development born of necessity; the Venetians needed a medium that would stand up to the damp air of a city laced with canals.

Finally there is what I might call the coffeehouse effect – the communication of similar ideas across different fields. I’m not sure I can describe how this works. Carl Schorske’s interesting book Fin-de-Siècle Vienna explains how revolutionary changes communicated themselves across different fields in the coffeehouses of turn-of-the-century Vienna: how the Expressionist painter Oskar Kokoschka and the atonal musician Arnold Schoenberg shared the idea that everything is in flux. How Freud in psychology and Gustav Klimt in art both began to explore the world of instinct, self, and the interior life.

Some Questions

I have sketched a picture of institutional pluralism in legal education, and suggested some ways in which schools with distinct cultures might both serve students better and advance the cause of legal theory. I would now like to mention some doubts I entertain about my own idea.

The first is big: institutional pluralism may be impossible. David Riesman once gave some lectures at the University of Nebraska4 in which he talked about his failed effort to build a distinctive law school at the University of Buffalo. His idea was to “develop a curriculum that was not merely a minor league version of the Eastern Seaboard schools but rather one which was designed with reference to the particular problems of Western New York.” The effort failed because of three homogenizing influences. First, at least half the faculty, and all but one of the younger people, had gone to law school at Harvard. They wanted to teach the courses that were held in high esteem at Harvard. Second, good students tended to have their eyes on the Supreme Court and the SEC, not the Buffalo City Planning Commission. Third, the faculty and the administration were interested in building an institution that would succeed according to the established norms of ranking. I might add a fourth such influence: large firms find a simple ranking system like U.S. News attractive for the same reason law schools like LSAT scores: both are ways of reducing information costs and simplifying the process of choosing among many applicants.

Some of Riesman’s objections have less force today than they did 70 years ago when he taught at Buffalo. There are more good law schools competing with Harvard. I don’t just mean Yale, Chicago, and Stanford. There is a more vibrant intellectual life in the American legal academy today than there was in Riesman’s time. Young faculty must write before they can get hired. They have more and different role models, and a more sophisticated understanding of U.S. News rankings. It may be that we are better able, at half a century’s remove, to resist the temptation to all be like Harvard.

I could say more along this line, but let me turn to a second kind of objection: even if we could make institutional pluralism work it might be a bad idea. Maybe what we want is diversity within institutions, not pluralism among institutions. Maybe the best way to discover truth is “out of a multitude of tongues”5 rather than through a collective effort. Mill says it’s good to have dissent – not everybody walking in the same direction – because (1) an unpopular opinion might be true; and even if it is not, (2) we will understand the truth better if we have to defend it.6

This objection is something of a red herring. Even if institutional pluralism meant that private schools could limit unorthodox expression,7 we would still have disagreement between institutions. It’s not clear that Mill’s argument entails protection for dissent at every level. More importantly, though, the idea of a distinctive institutional culture is not inconsistent with individual freedom of inquiry. None of the advantages I described in collective effort entails or depends on censorship. My wife and I would do crossword puzzles and Jumbles less effectively if either of us tried to control what the other thought. A mentor is a bad teacher if she forbids her student to put her insights to new uses. The Venetian school of painting taught and nourished a distinctive style of art through collaborative effort. It did not depend for its success on the suppression of competing styles. You see the point: collaboration is not control.

Conclusion

You may detect a note of uncertainty in my voice about the suggestion I am making. Institutional pluralism is a familiar phenomenon (most of us work for such places), but one we have not embraced in the legal academy. I think it would be a very healthy thing both for our students and for the intellectual life if we paid more attention to it. Schools don’t need to compete on the same track to succeed.

1 Out of a total of 195.
2 The Need for Negro Lawyers, J. Negro Educ. 49 (1935).
3 The D.C. Council created the District of Columbia School of Law in 1986 to take Antioch over. In 1996 the School of Law merged with UDC.
4 Published under the title Constraint and Variety in American Education (1956).
5 Keyishian v. Board of Regents, 385 U.S. 589, 603 (1967).
6 On Liberty ch. 2.
7 As Wheaton College fired Joshua Hochschild in 2006 for converting to Catholicism. The first amendment would of course prevent a public school from doing this.