Challenges to American Law Schools: Cost, Complexity and Precedents

Yale University law professor, Bruce Ackerman, recently wrote an op-ed in the Washington Post rejecting Obama’s suggestion that to save costs, legal education should be reduced from three to two years. Ackerman highlights an underlying question, “Should the future of U.S. law be shaped through a conversation between lawyers and technocrats, or should it be dominated by technocrats alone?”

Exploring this question can also help inform a similar debate within Islamic legal scholarship. To begin, the modern world is complex, dynamic, and often, impossible for even experts to understand. An exclusive legal specialist cannot always make fully competent rulings about a vast array of issues which require hard earned technical expertise (e.g. the environment, intellectual property, and war….if a drone malfunctions or is hacked, who is legally culpable for any subsequent strikes?). How does the legal system address to such real-world challenges?

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In response, countries such as France already cede over a great deal of legislative influence to technical specialists, such as psychologists who take great part in crafting criminal penalties and rehabilitation measures. However, this model may not be desirable or even possible in the United States, as it implies a strong-state association with the law, whereas in the United States we like to think of law as a project decoupled from central government (the American Bar Association is not government run, and our states reserve their own legal prerogatives).

In short, the complexity of the world highlights the horizontal problem of understanding parallel fields to which the law is applied. To give Ackerman’s call to keep three year law schooling a concrete measure, one solution may be to encourage lawyers to acquire a second specialization besides law. Even if they do not master the specialty, for example, by studying medicine but not completing an MD program, they will be sufficiently educated enough to engage in a nuanced discourse with technical experts. In other words, law schools could institute a functional minor and encourage their students to collaborate with technical counterparts. This still does not take care of the serious shortcoming of law schools’ price tag (some as high as $150k), unless new joint BA-JD programs allow students to expedite the process by a year.

But it’s not just the world that has become more complex, American law has aggregated quite a bit of history, too. This may be identified as the problem of precedent. How can we ask our law students to learn a second specialization in some other field, when they have so much more to learn than their peers did just a few decades ago? To offer a slightly facetious example, early nineteenth century lawyers didn’t have to learn thirteenth amendment law….because there wasn’t a thirteenth amendment! Nor did they have to learn the ever blossoming complexities of the first amendment, nor know anything about the New Deal drama or the perplexing Patriot Act. Atop the sheer volume of material rests a formidable intellectual feat: how are contemporary legal problems reconciled with law formulated in the past?

Justice Robert Jackson beautifully reflects on this issue during the course of his opinion on West Virginia State Board of Education v. Barnette (1943): “True, the task of translating the majestic generalities of the Bill of Rights, conceived as part of the pattern of liberal government in the eighteenth century, into concrete restraints on officials dealing with the problems of the twentieth century, is one to disturb self-confidence….These changed conditions often deprive precedents of reliability, and cast us more than we would choose upon our own judgment. But we act in these matters not by authority of our competence, but by force of our commissions.”

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These challenges facing American legal education also pertain to the current production of Islamic law, which, incidentally, has more than a thousand years of additional precedent and is strewn across a wide variety of geographical contexts. If Justice Jackson’s self-confidence was disturbed, one can only imagine how an Islamic legal scholar dealing with modern tax laws must feel. Even if it wasn’t for the Crisis of Authority within Islam (see Richard Bulliet’s work), Islamic scholars have quite a tall order to fill. The conversation about Islamic legal curriculum may already be underway, but is in dire need of much more focus and sustained debate. This is not only in the obvious interest of Muslims, but also Americans at-large, insofar as America is interested in a stable Middle East. One reason the political atmosphere in the Middle East is so unstable is the stagnation of intellectual centers, Islamic and otherwise. An intellectually sophisticated Islam, which includes living debates about its law, ethics, and modernity, would do much to enrich civil society, and moderate anti-intellectual (extremist) elements.

The relevance, and hence value, of American lawyers hinges on their ability to wrangle with the most complex modern questions and make themselves necessary for the efficient and just running of society, for example, in arbitrating various types of social and economic transactions When this is accomplished, lawyers, as a respectable worthy social class, are able to use their platform to advocate for issues of justice and higher values, which otherwise would not be addressed in the course of regular business. For example, they may advocate to desegregate schools or representing those who have no voice.  If we turn to using more technocrats, the first need of society of addressing modern questions, may be met, but we may gradually lose the opportunity to accomplish the second need of advocating for non-market guided public interests.

For lawyers to be relevant, they must be well-trained, which is why I agree with Ackerman in arguing that law school should typically be for three years. However, major changes, such as the popularization of the option for a six year BA-JD, must also be enacted in order to make such an education more financially accessible and allow students to also save precious time on lifespan. It is my hope that this continuing debate on American legal education can also foster a similar discussion of Islamic legal education, especially considering the structural similarities of both legal systems.