Stanley Fish, Superstar

I’ve been a big admirer of Stanley Fish’s writing since my undergraduate days 30 years ago.  Since then I’ve gotten to know him a little bit – we’ve spoken on the phone occasionally and had dinner a couple of times, and he provided a blurb for one of my books in my younger and more vulnerable years – and he remains one of the three smartest people I’ve ever met.

So I read his New York Times piece on teaching law with special interest.  Fish’s main point, that “law is surely a practice but it is also a subject, and if it ceases to be a subject – ceases to be an object of analysis in classrooms and in [the academic literature] – its practice will be diminished,” is in a sense wholly unobjectionable.

Any social practice as pragmatically important and morally and politically fraught as law will, by its nature, always be an important subject for academic inquiry.  And that sort of inquiry, as Fish points out, “is reflective . . . It is developed not on the wing, but in a course of study. It is academic knowledge in the best sense, knowledge that becomes yours by [among other things] pondering abstract, hypothetical questions.”  Law, in other words, is a subject that ought to be studied in universities, by people who are seeking knowledge for its own sake, rather than pursuing some more immediate practical goal.

So far so good.   But Fish’s argument goes much further than this.
Reduced to its essentials, Fish's argument appears to be that the impractical, supposedly "theoretical” nature of contemporary American legal education is a good thing, because law schools are and should be fundamentally academic institutions, rather vocational training programs. 

Thus if the students in his Yale law school class on law, liberalism and religion spend much of their time reading Locke, Hobbes, Rawls, Kant, Unger, Rorty, and Berlin, rather than merely parsing the doctrinal niceties of the Lemon test or Smith v. Employment Division, this is as it should be.  They are learning to think deeply about difficult legal -- which is to say historical and political and moral and philosophical -- questions, rather than learning the practical aspects of the trade plied by the three lawyers in America who make their living arguing about establishment and free exercise clause questions. And learning to think deeply about law is an important and desirable trait for people who are going to be lawyers.

In other words, Fish is saying the Yale Law School, where most students spend no time learning how to draft and file a motion, and lots of time grappling with difficult historical, political, moral, philosophical questions as those manifest themselves in an explicitly jurisprudential context, is A Good Thing.  And, as I’ve said before, I agree with that.  I’ve got nothing against the Yale Law School.  I’m sure the students in Fish’s class got a lot out of it (I would, sincerely, have loved to sit in, given that based on the evidence of his writings and lectures Fish must be a terrific and entertaining teacher).

So what’s the problem? It’s this: Fish thinks that law school as it is currently constituted in America should be a species of liberal arts education.  Now again, I hasten to add that I’m a big fan of the liberal arts, and that I agree with Fish that the current widespread attacks on liberal arts education represent a very bad cultural development. I’m all for good liberal arts education.  I deplore the anti-intellectualism manifested by such things as John Roberts’ recent faux-populist attack on “impractical” scholarship.  But here’s something else I’m against: requiring people to pay for seven years of post-secondary school liberal arts education before they can acquire a license to practice law.

Learning to think deeply about law is a skill and habit that future lawyers should be given every chance to acquire – as undergraduate students, studying law as a subject of concentration in a general liberal arts degree program.  Postgraduate legal education for future lawyers should consist of vocational training that takes place in explicitly vocational contexts, such as supervised apprenticeship and externship programs.  (This “radical” idea represents the structure of legal education in just about every other country in the world).

So where does this leave the Yale Law School, not to mention the various other law schools that have in recent years imitated Yale’s graduate school model of education with greater and lesser success?  There would be room in both the academic and legal hierarchy for a certain number of such schools.  They would have two ongoing purposes: training the next generation of legal academics (except almost all these people will go on to teach in undergraduate programs rather than “law schools,” which under this model would mostly cease to exist), and providing a mechanism for further social sorting, which could be employed by those high status legal institutions that wished to restrict their hiring to people who had enough time and money to spend a lot of both pursuing formal education beyond their undergraduate years.

What such programs – there might be ten or twenty – would not do is provide anything that would be a prerequisite for practicing law. 

Now I admit this model seems, on its face, horribly elitist.  Why shouldn’t all future lawyers get the benefits of something as undoubtedly intellectually valuable as Fish’s Yale seminar?  Why should we have two different castes of legally trained people – the vast majority who have an undergraduate degree in law followed by a formal apprenticeship, and a small subgroup who would have gotten the equivalent of a Ph.D. in jurisprudence?  Shouldn’t everyone drive a Lexus rather than a Corolla?   I’ll address that question in my next post.