At one time the very idea of “the law” inspired respect, admiration, and even awe. One thinks of the thrilling words of Thomas More in Robert Bolt’s play, A Man for All Seasons (1960). His future son-in-law Roper advises More to arrest a man who is likely to harm him at some point. More answers that the man must stay free even “if he were the Devil himself until he broke the law!” Roper balks at the idea of granting the devil the benefit of law, but More responds: What would you do? Cut a great road through the law to get after the Devil?…And when the last law was down, and the Devil turned round on you—where would you hide, Roper, the laws all being flat? This country is planted thick with laws from coast to coast, Man’s laws, not God’s, and if you cut them down—and you’re just the man to do it—do you really think you could stand upright in the winds that would blow then? Yes, I give the Devil benefit of law, for my own safety’s sake!
What would you do? Cut a great road through the law to get after the Devil?…And when the last law was down, and the Devil turned round on you—where would you hide, Roper, the laws all being flat? This country is planted thick with laws from coast to coast, Man’s laws, not God’s, and if you cut them down—and you’re just the man to do it—do you really think you could stand upright in the winds that would blow then? Yes, I give the Devil benefit of law, for my own safety’s sake!
Such idealism about the law was replicated in many mid-twentieth-century fictional works, for example, in the films Twelve Angry Men (1957) and The Devil and Daniel Webster (1941), in which a New England farmer hard on his luck sells his soul to “Mr. Scratch” in exchange for prosperity and success. The great Daniel Webster defends the farmer in court when the contract comes due—and manages to get him out of it.
Of course, confidence in the power of law depends on the law having some agreed upon meaning and application, fixed if flexible. The “rule of law” presupposes the existence of an objective order of understanding to which all may have access, as opposed to the shifting opinions that may govern in the “rule of men.” Czech dissident Vaclav Havel wrote that the arbitrariness of the myriad rules and regulations of the Czechoslovakian Communist regime was more demoralizing than the rules themselves, as bad as they were. But something happened in the countercultural years following the civil rights movement, as left-wing political activism combined with relativism to erode faith in the impartiality of the law.
The Supreme Court decision in Roe v. Wade (1973), for example, granting a constitutional right to abortion, seemed created out of whole cloth and entirely in response to feminist agitation, on an issue lying nowhere within the purview of the Constitution. The murder trial of former football star O.J. Simpson in 1995, to cite another negatively iconic example, brought us the spectacle of an overmatched and rather incompetent prosecution pitched against an extravagantly paid defense team ready to pull any base trick to get their client off, innocent or not. The mighty adversarial system designed to uncover the truth had turned into winning at any cost, and it seemed that Atticus Finch, the heroic defense attorney in Harper Lee’s widely read novel, To Kill a Mockingbird (1960), had been supplanted by Johnny Cochran.
The antics of Simpson’s “dream team” was equaled by the unseemly spectacle of zealous defense lawyers appearing nightly on television as commentators during the months of the trial, in which capacity they cheered every roadblock that Simpson’s lawyers could devise, while suggesting a few of their own. These lawyers looked not only ready to give the devil the benefit of law, but to sign the contract to sell their own souls in exchange for fame, fortune, and additional TV time.
Which is why our special section in this issue, “Hard Cases: America’s Law Schools,” is important. What is happening in the law schools has everything to do with the damage and depredation we see in the legal system at large. Our authors may not agree on all particulars, but they tell us that all is not well, that law school education is outrageously expensive, heavily politicized, and utterly saturated with “diversity” mania. Even further, it fails to provide any grounding in sound legal doctrine, or any moral or ethical basis from which to understand principles of law in debate today.
But we begin with some relatively good news, the rise of a constitutional jurisprudence whose essence is the rule of law.
Robert H. Bork recounts in the section’s opening piece, “The Growth of Originalism,” that as a professor at Yale Law School in the 1960s and 1970s, he was the lone proponent of the method of constitutional interpretation known as originalism, that is, the idea “that the Constitution should be read as it was originally understood by the framers and ratifiers,” in distinction from “the congeries of cultural and political theories proposed by academics and progressives.” But in the ensuing decades, originalism has gained force and at present “may be close to dominance in constitutional scholarship.”
Indeed, in a recent article on Justice Stephen Breyer, suitably titled “Without a Paddle,” author Jeffrey Toobin writes that Breyer is much clearer about what he opposes—namely, originalism—than about what method of constitutional interpretation he actually favors. Breyer uses such words as “pragmatic” and “workable” to describe his approach, which, from a conservative point of view, admits Toobin, are “little more than a smoke screen to cover his embrace of such liberal agenda items as abortion rights and affirmative action.”1 Remarks Edward Whelan as quoted by Toobin, “His so called pragmatic approach just leaves him wherever he wants to go.”2
The hugely expanding literature on originalism as well as the lively debate about it leads David F. Forte, in “Originalism in the Classroom,” to ask if originalism is now part of law school teaching on the Constitution. After offering a thorough background on the legal history of originalism, Forte examines the leading constitutional law textbooks used in the top fifty law schools and carefully charts the weight they give to it. He also garners responses from professors of constitutional law and finds that originalism, whether to be praised or vilified, is alive and well.
For his part, David French, graduate of Harvard Law School, senior counsel of the Alliance Defense Fund, and director of its Center for Academic Freedom, wants to know, in “American Legal Education and Professional Despair,” why lawyers are so depressed. His answer: law school, at least in part. Rehearsing his own post-law school professional experiences, French declares: “Not only does law school fail to prepare students for their professional life, it often actually sets them up for defeat and disappointment.” This is because “law school promises more than it can deliver financially, professionally—and perhaps most critically—emotionally.” But French has some thoughtful and reasonable ideas for improvement.
In “The Coming Law School Bubble,” Michael I. Krauss seconds much of what French says, and explains how forty years of politicized hiring in the law schools has left its mark. As with undergraduate education today, law schools lean decidedly and unthinkingly to the left and do little to prepare students to confront the complexity of legal and moral controversies over such issues as abortion and affirmative action. Krauss notes the deep debt incurred by law students, the poor job market for new lawyers, and the trickery employed by law schools to make their graduates seem more successful than they are. He warns prospects that most law schools “will provide an expensive and politicized education at a very high price that you may never recoup, in support of a profession that may be in existential peril.”
Charles E. Rounds, Jr., “Bricks without Straw: The Sorry State of American Legal Education,” explains more particularly how “[g]reat swaths of core legal doctrine have been scythed from the required law curriculum, a process of misguided reform that began in the 1960s.” What has been put in its place is “legal writing” and “practical skills.” But asking law students to focus on legal writing when they know so little of the law is to demand that they make bricks without straw, Rounds argues. The problem started when academics began to replace real-life practitioners of law on the faculty.
Lino Graglia gets into the financial nitty-gritty in “High Costs and Misdemeanors,” recalling that he paid $200 a semester when his daughter started at the University of Texas Law School in 1981. Today the school charges $29,640 for residents and $45,720 for nonresidents. When Graglia entered Columbia Law in 1951, the first-year cost was $600. That would translate to perhaps about $5000 in today’s dollar, but a year at Columbia nowadays costs ten times that amount. Graglia offers some thoughts on what on earth has caused these astronomical increases.
In “The Official Ideology of American Law Schools,” George W. Dent, Jr., focuses on the powerful Association of American Law Schools and its lopsided obsession with “diversity” based on race, color, and sex. Every panel at every scholarly program, whether devoted to civil rights or tort law, must feature minorities and women, and cogent and convincing conservative explanations for racial or sexual disparities only increase the demands of the AALS for analyses of deep “structural” inequities. But Dent was able to wedge in a panel on “Ideological Diversity and Discrimination in American Law Schools” at a recent annual meeting, and considers ways in which true diversity of viewpoint might be introduced into law school education.
Turning to other matters, we have two long and serious pieces. Kevin Nestor, “A Great Trust Betrayed: The Politicization of America’s Public Campuses,” describes what he saw firsthand of the deep and widespread politicization of American public campuses during ten years as a trustee at University of Ohio Mansfield. Nestor uses the aggressive program of GLBT activism as exemplary of the absolute foreclosure of thought and debate on campuses today.
The state of Michigan recently decided that all teacher preparation be accredited through the extraordinarily expensive and burdensome procedures of the National Council for the Accreditation of Teacher Education or the Teacher Education Accreditation Council. In “The Cost of Accreditation: Hillsdale Ends Its Teacher Certification Program,” Daniel B. Coupland tells the sad story of how this has necessitated Hillsdale College’s giving up its superbly successful independent program of preparing graduates for state certification.
Malinda C. Miller makes her AQ debut with a poem in which she has some “Questions for Leonardo.”
In “A Dean Remembers,” his review essay of Diary of a Dean and Decline and Revival in Higher Education, by Herbert I. London, Edward A. Rauchut examines the long career of a man who “has fought, and continues to fight, the good fight.” These books chart London’s observations on what has happened to academia from his undergraduate days at pre-1968 Columbia University to his deanship of a Great Books division at NYU to his present post as head of the Hudson Institute. A founder of the National Association of Scholars and former editor of this journal (who still serves on the board of both), London’s “influence is felt in the many organizations his hand has guided.”
This issue also contains a review of David Horowitz’s
The Genteel Tradition in American Philosophy and Character and Opinion in the United States, by George Santayana, edited with an introduction by James Seaton, is reviewed by a new contributor, Stephen D. Eide, who highlights some of Santayana’s fascinating observations about America and American academia, especially Harvard, in the early years of the twentieth century.
David French closes out the issue as our guest contributor to Books, Articles, and Items of Academic Interest. In “The Story of War: Four Books and Two Narratives that Follow the Iraq War from Start to (Almost) Finish,” French again taps his own experience, this time as a captain and JAG officer in the Army Reserve in Iraq. He examines four books about the war, two each by two authors—Thomas Ricks, who employs a “top-down” approach that investigates the plans and strategies of the leadership, and Bing West, who looks from the “bottom-up” at what the soldiers themselves have learned from repeated tours in the war. This analysis offers French an opportunity to consider how the history of the war is being written and how future historians may regard these contemporary accounts.