Paul L. Caron
Dean




Monday, March 1, 2021

'Old Codgers' Mark Tushnet & Louis Seidman Reflect On Their 50 Years In Legal Education

Paul Horwitz (Alabama) flagged this "charming, useful, and insightful" dialogue between Mark Tushnet (Harvard) & Louis Michael Seidman (Georgetown), On Being Old Codgers: A Conversation about a Half Century in Legal Education

The conversation that follows, conducted over three evenings, captures some of our thoughts about the last half century of legal education as both of us near retirement. We have edited the conversations so as to eliminate verbal stumbles and present our ideas more coherently, slightly reorganized a small part of the conversation, and added a few explanatory footnotes. However, we have attempted to keep the informal tone of our discussions. ...

Seidman: ... I reject the idea that only students at elite institutions would benefit from this tension — the unique tension — stemming from the fact that law schools are situated between practice and theory, between academic institutions and the real world. That is what makes law schools on the one hand different from philosophy departments and on the other hand different from vocational training. It is a unique and important role. As you say, the boom years demonstrated that nonelite institutions could serve their students in that way also.

Tushnet: Given different institutions, it might be appropriate for there to be different distributions of interest or different kinds of orientation among the faculty. When I was teaching at Wisconsin, which was what I called earlier an elite adjacent institution, then and I think probably still now, there were lots of people interested in social science and the law, lots of people interested in the critical perspective on the law. But there was also a course in general practice that was terrifically well designed. It was for students who were going back to their home towns and opening up solo practice in rural Wisconsin. It was a great thing for the law school to have. It wouldn’t be great if that was the only thing in the law school. ...

Seidman: The area where we certainly agree is that law schools straddle this line between practice and theory and that inevitably there is going to be a tension between those two and the tension is a productive one. The question that you raise, and that I haven’t thought hard enough about, is whether that tension has to exist in every law school class or if it’s enough that some of the classes are oriented toward practice and some are oriented toward theory. Or even whether the tension has to exist in every institution, or if it’s enough that some institutions are more theoretical and some are more practically oriented.

I want to make a broader point that is related to this discussion. When we were in law school, people took the enterprise much more seriously. They had much more self confidence that they were doing something of value. ... . People thought that law was serious. They thought that teaching law was valuable and important. They were giving something to students that students needed and wanted, and they were serious about the enterprise. ...

Here are some examples of how that sense has eroded. When I started at Georgetown, we had two 15-week semesters. Over the time I’ve been there, that has shrunk so we now have two 13-week semesters. That means that over their three year career at Georgetown, students are getting three months less of legal education than they got 45 years ago. So far as I can see, that’s led to no decline in the tuition that they are paying. You would think if they are getting three months less of legal education would entitle them to a substantial reduction in tuition. The reason they don’t get it is because students are delighted to pay so they don’t have to sit in classrooms with us and we’re delighted to have them not sit in classrooms with us because we don’t think we’re giving them anything that is all that valuable.

Another example, which we’ve just been talking about, is externships where, again, students are paying the same amount of money for less contact with the faculty. We’ve essentially outsourced their education -- if they are indeed getting any education at all -- to people who have nothing to do with the law school. We are teaching them less for the same amount of money and everybody thinks this is just fine because the students don’t want to be taught by us anyway. They don’t think they are getting much of value from us, and we don’t insist that we teach them because we don’t think we’re giving them much of value.

Tushnet: I want to interject two things. The first is that one of the most powerful lines for me in the literature of critical legal studies is in Roberto Unger’s article-book called The Critical Legal Studies Movement which was published in 1983, a long time ago. And the line is that when we, the critical legal studies people, arrived in the legal academy our colleagues were like priests who had lost their faith but kept their jobs. Even as of 1980, critical legal studies folks at least understood, I think accurately, that the prior faith in the seriousness of law as an enterprise, a discrete, distinct enterprise, had been substantially eroded. The second point is on the diminution of the classroom time. I think an economist’s reaction would be, well maybe our productivity in class has gone up so that we are able to accomplish same critical … Seidman: I just think that’s wrong. Tushnet: I’m less sure of that. Seidman: I think that’s wrong. There is no reason to think law professors have gotten more efficient. On your first point, yes, that’s exactly right. In part because of critical legal studies, there has been an erosion of faith that we are doing anything valuable and a demoralization that’s gone with that. ...

Seidman: I think that’s wrong. There is no reason to think law professors have gotten more efficient. On your first point, yes, that’s exactly right. In part because of critical legal studies, there has been an erosion of faith that we are doing anything valuable and a demoralization that’s gone with that.

Now you know to some extent whether we’re doing something valuable or not actually turns on whether we are taking it seriously or not. So there is a dialectic relationship here between how people feel about what they’re doing and whether it has value. ...

I remember during my first year of law school at the end of the year, students were really concerned about the exams, so all the first year professors in my section got together and talked to the students. To a person – I should say to a man -- they said, you know you may think these grades are arbitrary but they absolutely are not. There is a real difference between a B+ and an A- and that difference matters.

It’s hard to imagine that anyone believes that today. There is a very strong sense that all of this is arbitrary and nonsense and of course that might be right, in fact it probably is right. But when you have these priests who have lost faith, it really has an impact on the religion. I think it begins to make it very peculiar and makes everybody wonder what they are doing and whether it’s worthwhile at all. ...

Our role is not to change students’ minds, but it is to get them to hold the ideas they have in the most sophisticated form that they can be held. That requires that when a student says something, the professor pushes hard on it to see what the problems are so that the student can refine what she is saying. My sense is that even in elite institutions that is going on much less than it used to. ...

Seidman: Georgetown Law Center is a nominally Catholic institution and one aspect of the residual Catholicism there is the notion that we’re educating the whole person. Frankly, that gives me the creeps.

Tushnet: I think it’s one of the great things about Georgetown.

Seidman: So there you go. I think there is an important idea about jurisdiction here, and an educational institution that is concerned about the whole person risks totalitarianism. Universities ought not to care about the whole person. They ought not to care about my sex life or my views about religion or how I treat my neighbors. They have a very limited function. They care about education, about the mind, and so I don’t know that it’s necessarily a good thing that universities have athletic facilities. You know, as I’m saying this I understand how rigid it sounds, and I don’t mean it quite as rigidly as it sounds, but I do think there are dangers in expanding the jurisdiction of universities over aspects of their students that are really not their business.

Tushnet: Here too I would say we might want to think about whether different institutions could assert different kinds of jurisdiction and in this context it’s not irrelevant that Georgetown is an institution affiliated with the Society of Jesus and Harvard is not. It might well be that having a universe of 170 whatever law schools some of which take the care of the whole person seriously, others of which limit their jurisdiction, that might be a good thing. Call it institutional pluralism or diversity. You might well be right about Harvard, but I might be right about Georgetown. All law schools face this problem with respect to off campus behavior by law students in connection with non-law students, part of the #MeToo movement and drunken behavior kinds of problems and we all struggle with it. And I’m not sure that we as the legal academy writ large needs to have a single position about the scope of our jurisdiction. ...

Seidman: I think my ambition going forward is to be a better old codger than the last generation’s old codgers, to be more decent, more kind and more insightful. I suppose given where we are that’s ambition enough.

https://taxprof.typepad.com/taxprof_blog/2021/03/old-codgers-mark-tushnet-louis-seidman-reflect-on-their-50-years-in-legal-education.html

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