A Future for Legal Education:

A Reaction to Huppers Educational

Ambivalence: The Rise of a Foreign-Student
Doctorate in Law

PAULO BARROZO

INTRODUCTION

uppers Educational Ambivalence: The Rise of a Foreign-Student

Doctorate in Law is the latest in a series of important studies on the
doctorate in American law schools that she has authored. 1 This
body of work makes significant contributions to the study of doctorates in
law, and in particular distills some of the historical precursors of the more
general problems of legal education in the 21st century United States.2
Huppers scholarship lays the foundation for what I expect will be a
fruitful area of research and reflection by many others. In this response to
her latest work, I do no more than comment upon or supplement a few of
Huppers most interesting findings and conclusions, at the end sketching a
way forward for legal education in the United States.
Following Hupper, I focus on U.S. legal education. However, the
problems and solutions I discuss are universal or in the process of
becoming so. The principal problem of legal education in the 21st century
United States and beyond can be easily statedlittle of it is properly
described as education, most of it is training, and the remainder is neither.
I.

Practicism, Minimalism, and Parochialism

Trainingas opposed to educationis the result of a structural bias in

law schools in favor of what I label practicism, minimalism, and parochialism.
Further, each of these three problems reinforces and provides plausibility

Associate Professor, Boston College Law School.

See Gail J. Hupper, Educational Ambivalence: The Rise of a Foreign-Student Doctorate in Law,
49 NEW ENG. L. REV. 319, 322 (2015).
1

See id. at 32326.

485

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to the other two. There is, however, a way out of this situationwhich
includes the doctorate in law and other changes.
It is important to note that this fundamental problem in legal education
is not a function of the attitudes or preferences of law professors or law
students. Rather, it is the institutional design and culture of law schools
that have created a structural bias in favor of the destructive triumvirate of
practicism, minimalism, and parochialism. This bias, of course, influences
the attitudes of faculty and students.
Practicism is what an education designed to build a deep and wide
foundation for professional achievement in law degenerates into under
conditions of minimalism and parochialism. It stands for the view that the
professions and zones of social, political, and economic engagement that
legal education is supposed to prepare students to excel in are best
understood as technical activities, the relevant know-how for which rests
in skillfully operating a finite set of legal nuts and bolts in the performance
of low to moderate complexity tasks.3 Of course, some legal work is of
precisely that nature, and teaching how to do it could be delegated to
programs in technical schools or community colleges. In any event,
practicism is only intelligible and plausible if one also subscribes to
minimalism and parochialism.
Minimalism is what high scholarly and professional aspiration in law
degenerates into under the influence of practicism and parochialism. It is a
multifold phenomenon. First, minimalism is an intellectual malaise. The
view is that the learning ofand what is to be learned inlaw can be
reduced to learning rules, precedents, and jargon. Thus stunted, the ontology
of law and the primary object of legal learning become the series of
legislative, judicial, or administrative choices governing a regulatory area
and their respective basic technical notions. Psychologically, academics and
students experience this dimension of minimalism as a reassuring type of
training that allows them to derive straight answers to contained legal
questions. Second, minimalism is the view that the paradigmatic
professional setting for the use of legal learning is the law firm. This
minimalism extrapolates the importanceboth in terms of the number of
graduates employed in law firms as well as in terms of the social impact of
law firmsof the kind of employment that only about a fourth to a third of

3 See Duncan Kennedy, Legal Education and the Reproduction of Hierarchy, 32 J. of LEGAL
EDUC. 591, 59195 (1982); ANTHONY T. KRONMAN, THE LOST LAWYER: FAILING IDEALS OF THE
LEGAL PROFESSION 166 (1993); Catharine Pierce Wells, Introduction to American Association of
Law Schools Symposium: Bringing Values and Perspectives Back into the Law School Classroom:
Practical Ideas for Teachers, 4 S. CAL. REV. L. & WOMEN'S STUD. 1, 1 (1995).

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law graduates in the United States end up pursuing. Finally, and crucially,
minimalism is also a hedonistic approach to the study and teaching of
lawit allows students and faculty to evade much of the exertion of
learning. In this latter sense, any subject or approach that exacts a broad,
deep, and sustained intellectual effort, by pointing to complexity of
problems and to corresponding sophistication of knowledge and analysis
is disparaged as non-law.
Practicism begets minimalism, and minimalism justifies practicism.
Together, practicism and minimalism distort the nature and promise of
legal education: (1) they figure prominently in explaining the lack of
structural incentives to audacious and high caliber faculty scholarship and
to student scholarly achievement; (2) they betray the social value of the
many legal professions; (3) they help explain the way law schools react to
rankings and law firm employment environments; (4) and they elucidate
the resilient parochialism of initiatives in advanced legal education.
Parochialism in legal education is what cultural self-confidence decays
into when combined with practicism and minimalism. Parochialism has
spatial, temporal, and intellectual dimensions. What unifies those
dimensions is shrinkage. In parochialism, the geographical, historical, and
intellectual realms one inhabits are imagined smaller than they really are.
For an example of how parochialism is manifested in legal education, turn
to the latter part of the 20th century when the United States emerged
victorious from World War II,4 with its growing cultural self-confidence
and influence riding on its international military, economic, and
geopolitical power. Domestically, the elected branches of government
seemed unable to provide sufficient moral leadership in bringing
transformations in areas of great injustice in American society. In these
circumstances, the Supreme Court came to occupy an ever larger
leadership position on important national questions and reforms. 5 With
this increase in the prestige of the Supreme Court came the emergence of
the federal appellate clerkship as the high water mark of accomplishment
for law graduates aspiring to a permanent place in the academic world.6
Practicism and minimalism met parochialism.
4 See Gail J. Hupper, The Rise of an Academic Doctorate in Law: Origins Through World War II,
49 AM. J. LEGAL HIST. 1, 57 (2007) (explaining that post-World War II, the contribution of
graduate work in law should be a broader and deeper study of the functioning of law in
society, with greater emphasis . . . upon making legal knowledge effective in implementing
social values.).
5 See, e.g., MICHAEL J. KLARMAN, BROWN V. BOARD OF EDUCATION AND THE CIVIL RIGHTS
MOVEMENT x (2007).
6 See, e.g., William E. Nelson et al., The Liberal Tradition of the Supreme Court Clerkship: Its
Rise, Fall, and Reincarnation?, 62 VAND. L. REV. 1749, 1756 (2009).

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II. Practicism, Minimalism, and Parochialism in Operation

Huppers Educational Ambivalence traces the historical arc of the
possibilities and limitations of doctoral legal education in the United
States.7 I believe, as I mentioned, that the Articles insights can be
generalized to the current predicament of all levels of legal education. In
this Section I briefly point to four signs that legal education is in peril and
connect those signs back to law schools structural bias in favor of
practicism, minimalism, and parochialism.
I start with two claims that are obviously true. First, law is not rocket
scienceit is much harder. Indeed, legal education well-understood is a
most challenging and demanding endeavor. The second claim is that
faculty and students joining law schools are selected from among the best
intellectual talent available, typically holding high aspirations for
themselves and for society. In law schools, intellectually gifted and
ambitious individuals encounter one of the most resourceful departments
of the modern university. The combination of intellect, high aspirations,
and ample resources should lead to the best in true education.
And yet, legal education continues steadily on the path of decaying
into the mere provision of technical training: the intellectual and social
lions who arrive at the steps of law schools every year are routinely turned
into intellectual and social lapdogs. Of course, there are exceptions
everywhere.
Another aspect of the current situation of legal education is
particularly telling with respect to its continuing degeneration into mere
training. The academic study of law carries a double invitation. The first
invitation is to join an extraordinary intellectual tradition with ancient
roots;8 the second is to join one of the many professions and the respective
zones of intellectual, social, political, and economic engagement that
thinking well about law uniquely prepares one for. However, students
joining American law schools in the 21st century have come to believe, as a
result of the structural bias in legal education in favor of practicism,
minimalism, and parochialism, that the academic study of law is about
being trained, thus accepting only a narrow version of the second
invitation.9 Faculty in those law schools are led, by similar institutional
biases, to believe that intellectual minimalism with respect to their own
scholarly projects and the practicism of coaching students into acceptance

See generally Hupper, supra note 1, at 32223 (summarizing the Articles purpose).
See DONALD R. KELLEY, THE HUMAN MEASURE: SOCIAL THOUGHT IN THE WESTERN LEGAL
TRADITION 15 (1990).
8

See Hupper, supra note 1, at 40809.

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of the narrow version of the second invitation constitute their primary

responsibilities.
This reductionist understanding of the nature of legal education does
not do justice to the talent and aspirations of legal academics and their
students or to the resources available to them. For some time, this
reductionism created the impression in many of its conscious and
unconscious subscribers that all was well.
For students, while only a minority of those graduating from national
law schools would end up in medium to large size law firms,10 there
seemed to exist a deep psychological comfort in believing that they could,
if they wished, become participants in the provision of legal services to
corporations. Most career services departments seemed addicted to the
ease of being the middleman between a fraction of their students and law
firms.11
For legal academics, the rewards of reductionist understandings of the
nature and promise of legal education were largely hedonistic. Exempted
from the obligation of undertaking the hard work of gaining a thorough
mastery of the intellectual traditions of law in general and of their fields of
expertise, many seemed content with a couple of eureka moments per
year. Each of these moments could easily be transformed into an industrytype law review article to be selected for publication and edited by
students, usually insufficiently prepared to judge the quality of the
scholarly contribution they were selecting and editing. Were law professors
to master the intellectual tradition of law, I suspect they would have found
that Aristotle, Cicero, Gaius, Aquinas, Accursius, Bartolus, Baldus, Bacon,
Hobbes, Leibnitz, Vattel, Adam Smith, Rousseau, Blackstone, Savigny,
Hegel, Holmes, or any of a host of others, had already stolen all their best
ideas.12 Ignorance of the derivative or conventional nature of ones ideas is
a form of bliss; although, following J. S. Mill, it may be said that the
pleasure in question is not of the highest order.13
That state of bliss came to an end around 20092010 when changes to

10 See 2013 Law Graduate Employment Data, A.B.A., http://www.amerianbar.org/ (search for
2013 ABA-Approved Law School Graduate Employment Data, then click the first link to
open the pdf) (last visited Mar. 31, 2015).
11 See, e.g., Career Services Office, Shepard Broad Law Ctr., Employer Hiring Patterns and
Student Timetable, NOVA SOUTHEASTERN U. L. 1, 24 (Dec. 2002), https://www.nsulaw.nova.edu
/intranet/ students/career/documents/timetable.pdf.
12 See PHILOSOPHY OF LAW 13 (Joel Feinberg & Hyman Gross eds., 5th ed. 1995).
13 "It is better to be a human being dissatisfied than a pig satisfied; better to
be Socrates dissatisfied than a fool satisfied." JOHN STUART MILL, Utilitarianism, in ON LIBERTY
AND OTHER ESSAYS 140 (John Gray ed., Oxford Univ. Press, 2008).

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the employment structure of law firms laid bare the flimsiness of the
foundations on which that state of bliss had rested. 14 Confused, students
felt validated in their interpretation of high tuition fees as an additional
sign that they were indeed in the market for a type of service: minimally
challenging and entertaining legal training that culminates with bar
eligibility certification and law firm employment placement if they so
wished. Shell-shocked by changes in the law firm employment picture, law
schools and their career services reacted by confirming and reinforcing the
perception that students are clients of the services they were in the market
to sell. And now the customers are unhappy. Legal academics dug the
educational hole deeper and sought, more than ever before, to make
customer-students as content and reassured of their practice-readiness as
they possibly could be. Should they pose any serious intellectual challenge
to students, legal academics were expected to apologize and rectify
matters, fearing negative customer satisfaction reviews (known in
contemporary education as course evaluations) at the end of each course.
In sum, the economic recession led to deeper entrenchment of practicism,
minimalism, and parochialism in law schools institutional and cultural
identity.15 None of this would be the case if faculty, students, and law
schools did justice to legal education. When that inevitably happens, and it
will, the days of practicism, minimalism, and parochialism will be
numbered, and legal education will at last flourish.
A third debilitating consequence of the failure to comprehend the
nature of legal education is found in the reaction of law schools to law
school rankings. The attention, significance, and cooperation law schools
extend to the rankings created by business media is puzzling. 16 That law
schools are held hostage to the rankings would seem unimaginable if an
observer knew how much intellectual talent, personal and social
aspirations, and resources law schools attract and command in the United
States. Such an observer would hardly credit the idea that these schools
resigned themselves to playing by the rules set by a rent-seeking and selfperpetuating business of producing and selling rankings without showing
a modicum of self-respect or courage. A mitigating factor of law schools
14 See generally Jordan Furlong, The Disappearing Associate, LAW21 (Feb. 13, 2009),
http://www.law21.ca/2009/02/the-disappearing-associate/ (discussing the decline of law firm
hiring practices occurring during the years 2009 and 2010).
15 See Hannah Hayes, Recession Places Law School Reform in Eye of the Storm, 18 PERSP. 8
(2010), available at http://www.americanbar.org/content/dam/aba/publishing/perspectives_
magazine/women_perspectives_spring10_recession_law_school.authcheckdam.pdf.
16 See, e.g., Ben Taylor, Why Law School Rankings Matter More Than Any Other Educational
Rankings, FORBES (Aug. 14, 2014), http://www.forbes.com/sites/bentaylor/2014/08/14/why-lawschool-rankings-matter-more-than-any-other-education-rankings/.

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faulty reaction to rankings is: once the nature of legal education is

misunderstood, and practicism, minimalism, and parochialism take root,
law schools, faculty, and students become easy prey for profit devices as
simplistic as the current rankings.
Law schools rationalization of their prostration before the rankings
rests on a series of interlocking fallacies. One can start anywhere in the
chain of fallacies in order to unravel it. Here is one way to do it. First, law
schools convince themselves by the persuasive force of repetition that law
firms are not happy with the training law schools offer their students.
Second, law schools conclude that as a consequence, they should import
into the law curriculum the job training law firms are no longer willing to
provide (often for jobs they no longer offer anyway). Step three, law
schools convince their students that they ought to be practice-ready,17 as
the mantra goes these days. However, coaching for practice-readiness is
expensive, and is ideally inflicted on students who are quickly trainable.
Fourth, attracting funds and easily trainable students is the first and most
important task on which all else depends. Lastly, attraction of funds and
trainability potential is predicated on doing well in the rankings, which
metrics track trainability and employability. The outcome is a race to the
bottomthe opposite of the direction that a proper understanding of legal
education and of the value of educational excellence, together with
institutional self-respect, would lead to.
This educational tragedy would be powerfully resisted and promptly
overcome if not for the reigning minimalismperhaps especially of the
intellectual kindin law schools. In 1834, the English translator of F. K.
von Savignys manifesto against the codification movement in Europe
preemptively wrote in his Preface that [a] modern English writer is
expected to be so pellucidly clear, as almost to save his readers the exertion
of thought . . . .18 He was right then and even more so now.
Intellectual minimalism is not the same as anti-intellectualism. The
self-understanding of those who teach and study the law is that they are
intellectually sharp, which is a source of pride and pleasure for them.
Intellectual minimalismone aspect of minimalism as defined aboveis
the view that the world, and the discourses that seek to explain it, cannot
possibly be very complex. It is the view that the intellectual traditions we

17 See, e.g., Charlotte S. Alexander, Learning to Be Lawyers: Professional Identity and the Law
School Curriculum, 70 MD. L. REV. 465, 468 (2011) (noting Georgia State Universitys program
that gives students field work experience instead of lectures).
18 Abraham Hayward, Preface to FRIEDRICH CHARLES VON SAVIGNY, OF THE VOCATION OF
OUR AGE FOR LEGISLATION AND JURISPRUDENCE v (Abraham Hayward trans., Legal Classics
Library 1986) (1828).

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engage in cannot possibly be significantly broader than what the twenty

most cited authors have published in student-led law journals over the last
twenty years.19 This attitude sees as optional the travails of the legal mind
in mastering the traditions of thought it inhabits. In this atmosphere it is
easier, and surely just as effective, to go straight to the paragraphs or pages
in the tradition that ones research assistant points out as possibly relevant.
This approach makes fragmentation of the tradition the price to be paid for
invoking it in the process of scholarly lip service. The optionality of the
tradition and its consequent fragmentation have a lethal effect on
intellectual relevance in law.
A fourth symptom of practicism, minimalism, and parochialism strikes
at the center of law schools prestige and influence. Hupper opens her
Article with Yale Law Schools recently created Ph.D. in Law.20 She quotes
the programs announcement to show that Yales new doctorate has a
constituency of J.D. graduates of American J.D. programs; an
epistemological commitment of a broad foundation in the canon of legal
scholarship;21 and a mandatethe provision of specialized training22 for
the production of scholarship. This degree currently coexists with Yales
J.S.D. degree.23 Of course, the impact of the separate-but-comparable
doctorates in the same law school will be to reserve the Ph.D. degree to
mostly American graduates of American law schools and the J.S.D. to
foreign graduates of foreign law schools.24
It would be a mistake, though, to think that Yale is the only law school
in the United States afflicted by a slip back into parochialism. In the grip of
parochialism, even international exchange programs can lead to its further
enshrinement. While it is sobering that an institution such as Yale Law
School would develop a new way of separating students in the 21st
century, that it did so is symptomatic of the cumulative effects of
minimalism and the post-war sense of cultural self-sufficiency that rode on
the back of American economic and military powerfactors which
Hupper correctly identifies in her Article.25 Furthermore, if one fully
understands the way practicism and minimalism operate, it is clear that a

19 Cf. Fred R. Shapiro & Michelle Pearse, The Most-Cited Law Review Articles of All Time, 110
MICH. L. REV. 1483, 150405 (2012) (listing the names of the top authors published in studentrun law journals).
20

See Hupper, supra note 1, at 319.

Id.
22 Id.
23 Id.
24 Id. at 320, 326.
25 Cf. id. at 32223, 395.
21

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broad foundation in the canon of legal scholarship26 and the provision of

specialized training27 for the production of scholarship will likely reflect
and further enshrine the existing structural bias in law schools toward
practicism and minimalism.
I end this Section by inviting the reader to take a step back to 19th
century American philosophical pragmatism and early 20th century legal
realism in order to explain the historical roots of the vulnerability of law
schools design and culture to the influence of practicism, minimalism, and
parochialism.
Pragmatism is a fruitful philosophical school that emerged in 19th
century United States.28 In very general terms, pragmatism, at both the
explanatory and normative levels, takes a functionalist approach to
epistemology and action orientation. Also fruitful in its own way, legal
realism is a school of legal thought that although not native to the United
States, encountered here a reception unlike anywhere else in the world.
Likewise in general terms, legal realism takes a functionalist approach to
legal epistemology, legal practice, and legal policy. 29 These two schools of
thought were closely related in the work of Oliver Wendell Holmes, Jr.,
and are now mainstream in American culture, including in law schools.30
There exists in original philosophical pragmatism and legal realism a
great ambition of the mind, but that aspect of those schools of thought is
not what was mainstreamed in contemporary American law schools,
despite the effort of several scholars. What came to prevail was an
impoverished functionalist approach to knowledge, practice, and policy.
Writing in the 1830s about the philosophic method of the Americans,
Alexis de Tocqueville stated:
I think there is no country in the civilized world where they are
less occupied with philosophy than the United States . . . . To
escape from the spirit of system, from the yokes of habits, from
family maxims, from class opinions, and, up to a certain point,
from national prejudices; to take tradition only as information,
and current facts only as a useful study for doing otherwise and

26

Hupper, supra note 1, at 319.

Id.
28 See generally LOUIS MENAND, THE METAPHYSICAL CLUB: A STORY OF IDEAS IN AMERICA x
xi, 75, 22627, 350 (2001) (tracing the development of pragmatism by philosophers William
James, Charles S. Peirce, and John Dewey during the 19th century).
27

29

See AMERICAN LEGAL REALISM 51 (William W. Fisher III, Morton J. Horwitz & Thomas A.
Reed eds., 1993); JOHN HENRY SCHLEGEL, AMERICAN LEGAL REALISM AND EMPIRICAL SOCIAL
SCIENCES 1516 (1995).
30 See Justin Desautels-Stein, Pragmatic Liberalism: The Outlook of the Dead, 55 B.C. L. REV.
1041, 108788 & n.308 (2014); Wells, supra note 3, at 347, 353.

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better; to seek the reason for things by themselves and in

themselves alone, to strive for a result without letting themselves
be chained to the means, and to see through the form to the
foundation: these are the principal features that characterize what
I shall call the philosophic method of the Americans.31

De Tocquevilles account of the defining feature of the American mind

is far from complete, and it was not entirely accurate even for the 19th
century. That said, it does seem to capture the functionalist orientation that
would in our own time render American law schools vulnerable to the
hold of practicism, minimalism, and parochialism. Functionalism offers
cognitive and practical insights that ought to be welcome among the
intellectual and practical concerns of jurists and lawyers.32 However, when
a diluted functionalist orientation becomes sovereign, it sabotages
education and thought. Once law is defined as a means-to-an-end and legal
thinking is measured against the benchmark of expediency, and the
tradition of legal thought is considered valuable only to the extent that it
provides prt--porter33 solutions to real or perceived problems, then the
tradition of thought is conceived as an (optional and fragmentary)
intellectual band-aid. Fragmentation of the intellectual tradition tends to
lead to fragmented thinking.34
Now, history is not fate. The United States has neither more nor less
appetite for intellectual ambition and sophistication than any other country
I know of. Furthermore, legal education seems to be in as much trouble in
the United States as it is in almost any other place. It is, however, important
to acknowledge that the malaise of contemporary legal education in the
United States has its own distinctive historical roots in addition to the more
universal causes that it shares with legal education elsewhere.
The picture I draw of the current state of legal education in the 21st
century United States is obviously incomplete, and I only highlight some of
the aspects that Huppers work touches on or provokes one to think about.
But even this incomplete picture raises the question of why so much
intellectual talent, ambition, and resources settle for so little in education.

31 ALEXIS DE TOCQUEVILLE, DEMOCRACY IN AMERICA 403 (Harvey C. Mansfield & Delba

Winthrop trans., Univ. of Chicago Press 2000).
32 See Elizabeth F. Emens, Intimate Discrimination: The States Role in the Accidents of Sex and
Love, 122 HARV. L. REV. 1307, 1365 (2009) (explaining a functional approach to analyzing
relationship issues within the employment domain).
33

Defined as ready to use/wear. MERRIAM-WEBSTER, available at http://www.merriamwebster.com /dictionary/prt--porter.com.

34 See generally Paulo Barrozo, The Great Alliance: History, Reason, and Will in Modern Law, 78
LAW & CONTEMP. PROBS. 235 (2015) (providing a detailed explanation of the intellectual roots
of current legal thought).

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Far from providing a complete answer to this question, in this response I

identified one fundamental characteristic of contemporary law schools
the structural bias in favor of practicism, minimalism, and parochialism
and how this characteristic shapes law schools interactions with select
elements of their intellectual, economic, social, and cultural environments.
I turn now to a possible path out of the current predicament.
III. Three Proposals for Legal Education in the United States
If legal education is to replace legal training, law schools must
reconnect to the mission of gaining clarity about law and its possibilities
without sacrificing complexity, understanding, and sophistication. They
must, in short, expunge from their institutional design and culture the bias
in favor of practicism, minimalism, and parochialism, replacing it with a
deep commitment to high scholarship and to provide students with the
foundations to excel in any and all of the zones of professional engagement
in the law. Unless and until that is accomplished, law schools will fail to do
justice to the talent they bring together, the resources they command, the
tradition of thought they have the fiduciary duty to critically cultivate and
expand, and the full range of legal professions that they serve.
However, the structural bias toward practicism, minimalism, and
parochialism appears to be both resilient and growing. With that in mind,
and inspired by Huppers Article, I focus on three proposals I believe may
start to change the structure of law schools and transform legal training
into legal education. The proposals are relatively modest and not too
difficult to implement.
A. First Proposal
Law schools should endow a foundation to rank them according to
standards designed to capture the quality of their contributions to both the
grand traditions of legal thought and to the many legal professions. Call
this The Legal Education Peer Quality Assessment. Columbia, Harvard,
Stanford, Yale, and the Association of American Law Schools have an
obvious special responsibility to launch the initiative, but no law school
(and I feel particularly strongly so in relation to my own, Boston College
Law School) is excused from leadership in the endeavor.
The Legal Education Peer Quality Assessment would have only five or so
tiers, and each law school would be placed in one of them. There would be
no maximum or minimum number of schools in each tier. Ideally, over
time all law schools would end up in the first and second tiers.
The foundation producing the assessment would reflect the highest
standards of professionalism, integrity, and knowledge in the discharge of

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the mandate to serve both the traditions of legal thought and the many
legal professions.
However, law schools should not wait until The Legal Education Peer
Quality Assessment is established in order to stop providing data to feed the
metrics of current business owned rankings which perpetuate the malaise
of legal education.
B. Second Proposal
Law schools should reform their curricula to create a required sixcredit year-long course on legal thought. Call this the Foundations of Legal
Thought course. The talented and ambitious minds arriving every year at
law schools should be given an opportunity to accept the invitation to
partake in the traditions of legal thought. This may well be the most
important initiative to start immunizing new generations of students
against the structural bias in favor of the practicism, minimalism, and
parochialism that, very early in their law school years, start to weigh down
on their talents and aspirations.35
Naturally, schools and scholars would possess different conceptions of
what should be included in Foundations of Legal Thought. For example, some
may emphasize canonical works selected from the ages of legal thought,
while others may focus on groundbreaking contemporary works. The
important task to keep in mind is connecting students to true intellectual
greatness in law before they are pigeonholed by curricula compromised by
the structural bias.
Wide adoption of a required course like Foundations of Legal Thought
would likely send tectonic signals throughout the system of legal education
showing that students are not customers and law schools are not service
providers. Law schools are communities of scholars and exceptionally
talented lawyers receiving and educating new generations of scholars or
lawyers. This community is grounded in the traditions of legal thought and
the varied forms of intellectual, social, political, and economic engagement
that the study of these traditions exceptionally prepares one for.
C. Third Proposal
Relatively modest as the first two proposals are, the prevailing bias in
favor of practicism, minimalism, and parochialism may have already
severely undermined the sense of possibility in legal education and
simultaneously created bureaucratic incentives that will prove difficult to

35 See Anthony Niedwiecki, Teaching for Lifelong Learning: Improving the Metacognitive Skills
of Law Students Through More Effective Assessment Techniques, 40 CAP. U. L. REV. 149, 153 (2012).

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deprogram in the short run. Furthermore, J.D. programs will continue to

labor under constraints that limit their role in the study and renewal of the
traditions of legal thought. How then can these two problems be addressed
while keeping alive a model of what legal education can be at its best?
My answer is that law schools should turn, as almost every other
department of the modern university has, to doctorates as institutional
islands of scholarly ambition and excellence. These islands should be
sufficiently insulated from the structural biases that plague law schools so
they may eventually disseminate the will and ability to truly learn and
educate about the law to the rest of legal education.
Law schools should aim to recruit a critical mass of scholars and to
create or reform their existing doctorates to reflect a commitment to high
scholarship. The new doctorate in law should tap the global pool of talent
for doctoral students unafraid of intellectual challenges without regard to
place and language of initial legal education. The new doctorate should
discard the parochial requirement that applicants have completed an LL.M.
in the United States. Schools that fail to do so should at least abandon the
hyper-parochial requirement that applicants have completed their own
LL.M. Again, that is what almost every other department of the modern
university does.
The new doctorate in law should be designed to hold students
accountable for learning the foundations of legal thought in general and of
their particular fields. The students should understand that whatever else
the doctorate is about and wherever else they will employ their learning,
they are the critical and inventive keepers of a long tradition of thinking
about society and self in grand and complex ways.