American Legal History and the Hessian Effect

hessianIt is curious thing that, even as undergraduate liberal arts programs continue to take a beating, law schools designed to train professionals now offer more humanistic (sometimes called perspective) courses than ever. What may be even more curious is that the presence of these courses in the curriculum is justified on instrumental grounds. Courses in jurisprudence, legal history, and comparative law (as well as others taking their cue from the social sciences) provide, it is argued, a context for the understanding (and later exercise) of practical wisdom.  The Hessian effect — the sense that the law teacher is there simply to train practically-minded mercenaries, see Thomas Bergin, The Law Teacher: A Man Divided Against Himself, 54 Va. L. Rev. 637 (1968) — remains present in legal education, but the definition of the training of lawyers has broadened to encompass such courses as integral to one’s legal education.

Part of this transformation results from the greater employment of legal academics who hold joint degrees in law and other disciplines, many of whom had little experience in practice. Part was a reaction against dogged resistance to “big ideas” about law in mid-twentieth century legal education, and part, I think, is due to a hunger in students for something more from their education than technocratic training. 

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Does the ABA Do Good? (Part II)

The ABA has been the official federal accrediting body of law schools since 1952, a task it undertook informally after the issuance of the Root Committee Report in 1921. A law school approved by the ABA can remain in business because its students are eligible for federally guaranteed loans and because every state’s licensing authority has made graduates of ABA-approved law schools eligible to take its bar exam. Thus, a law school wants to please the ABA inspection teams that visit every seven years (and more often if the school is new) for a determination of whether to re-approve the school.

Has the existence of the ABA as accrediting body aided legal education?  Before 1995, the answer was a qualified yes. The ABA demanded law schools invest in resources that aided students (for example, requiring more full-time faculty), and inculcated a professionalism in legal education that provided for enhanced (though flawed) training of lawyers. The system had its faults, particularly the ABA’s use of its monopoly approval power to 1) push for faculty pay increases, 2) make demands regarding size of libraries and secure tenure status for librarians, and 3) make excessive capital demands of new law schools. On the whole, though, as Robert Stevens concluded in an article on American legal education, the ABA deserved two cheers.  See Robert Stevens, Two Cheers for 1870: The American Law School, in Law in American History 405 (Donald Fleming & Bernard Bailyn eds. 1971).

This ABA’s understanding of its role and its actions regarding it authority has changed markedly since the entry of the consent decree in the antitrust matter filed by the DOJ against the ABA. 

Continue ReadingDoes the ABA Do Good? (Part II)

Does the ABA Do Good? (Part I)

No. (This, however, is a polemic, and as such I am unfairly neglecting some of the fine work done by some ABA sections.) As a law student, I had an inchoate thought that the ABA could be a kind of strong mediating institution between the state and the individual that would make it beneficial to the public, not just a large lobbying organization protecting the business interests of lawyers. I had a woeful lack of knowledge of the quite sketchy history of the ABA. I thought the ABA could use its organizational heft to improve the quality of applicants to the profession, improve the ethical standards required of all lawyers, and advance the public profession of the law.

One issue of importance to the ABA during my formative years as a lawyer (and even now) was its role in the vetting process for federal court nominees. Having joined the legal profession in 1982, I was quite familiar with the burgeoning culture wars, including their cousin, the judicial appointment wars. I never thought much of the ABA’s efforts to control (or at least channel) judicial selection through its Committee on the Federal Judiciary, particularly after it couldn’t determine, based on its own “non-ideological” criteria, whether Robert Bork was highly qualified, qualified, or a hopeless disaster in the making. I don’t mind the ABA’s efforts to evaluate federal judicial nominees; what bothers me is that it claims to do so as an independent, neutral, unbiased expert.

But neither its history nor its tiresome efforts to wield an oddly refractive kind of political influence is what really bothers me. No, the ABA does harm because it can’t get it right on what should be its two most important areas of concern: legal ethics (this Part) and legal education (Part II). 

Continue ReadingDoes the ABA Do Good? (Part I)