In this post I want to build upon my earlier post concerning the ‘2 v. 3’ debate, and the ways in which this debate often problematically sidesteps problems with higher education more generally—but, in particular, undergraduate education—in the United States. I learned a lot from the comments to that earlier post as well as some private emails I received, so here I’d like to respond to some of the themes I saw emerging in that previous discussion, and also set the stage for at least one more post on this topic.
As the title to this post is meant to suggest, I think we need to be careful in how we understand ‘the liberal arts,’ and neither singularize nor essentialize it. Some previous commentators suggested that there was much to be learned from disciplines that would not traditionally be considered part of a liberal education—for example, marketing, financing, and accounting. Other commentators suggested that what passes for liberal arts education in the contemporary United States—for example, haphazard courses of study in philosophy or political science with no guiding sets of (humanistic) problems or questions—is hardly beneficial.
I am sympathetic to both sets of concerns and, in fact, one of the central realizations that I try to bring my students to when teaching Comparative Law is that overarching systemizations of ‘the world’s different legal systems’ are often not very helpful. In other words, it would be as problematic to always categorize accounting as not part of the liberal arts as it would be to describe the United States fundamentally as a democracy. We need to get beyond merely surface characterizations and impressions.
But such surface talk is what much of the ‘2 v. 3’ debate deals in, in the process avoiding a more serious debate about what we fill any number of years of (legal) education with, and what kind of lawyer—and, indeed, what kind of person—we want to emerge from whatever educational enterprise/s is/are settled upon.
The ‘we’ here is not a royal one, but a social one. In other words, I take it as axiomatic that we are hoping to design a legal education system whose graduates are conceived of as social actors with responsibilities towards their fellow citizens (global or otherwise), much in the same way that we conceive of medical education and doctors. That is to say that there’s no (capitalistic) ‘right’ to be a lawyer or a doctor and it’s also to say that neither legal or medical licenses should be designed as products that can be bought cheaply via Amazon.com. I mention the cost issue here because ‘2 v. 3’ often devolves into ‘2 x $45,000 v. 3 x $45,000.’ To my mind, ‘# of years’ is a pretty thin question in the legal education debate, and talking about ‘# of dollar-years’ doesn’t make the discussion significantly less anorexic.
Access to legal education is, of course, fundamentally important here, but that is a very different kind of discussion than ‘Shouldn’t we make law school cheaper, leaner, and less boring by shortening it?” At the very least, access to legal education also involves crucial questions of pedagogy and course-content: it’s more difficult to motivate social marginalized people to apply to law school, or stay in it, when law school is designed to teach relatively conservative approaches to law. Access to legal education also concerns questions of financing legal education, which are somewhat distinct than simple cost questions.
Where then have U.S. law schools failed, viewing that failure through the lens of society writ larg(er)? One recurring theme of commentators to my first post on this topic was an observation that most law students enter law school with writing skills which are not satisfactory, and law school does not do enough to change that. I can only be in agreement with those anecdotal observations, seeing how many (but certainly not all) of my students over the years have told me that they were never required to write a single research paper during their undergraduate education. Such lack of attention given to writing during the undergraduate years is a huge problem, and also one illustrative of how the possibilities of U.S. legal education are deeply linked to the successes and failures of undergraduate education in the United States. Thus, it seems that whether law schools are 2 or 3 years in length, if they are to be successful, they will have to ‘make up’ for the inattention given to writing—as a crucial technology of a liberal education—during the undergraduate years.
I will have more to say about this in my next post on this topic, but I think it is near impossible to separate out process and content in education. We do Socratic(ish) inquiry in law school because it fosters a certain kind of thinking. We have multiple formats of classes—lecture, seminar, clinical—because each contributes to the development of a broad repertoire of thinking and communication skills. So then can we see writing, or at least substantial writing like that which is typically found in seminars, i.e. as a pedagogical process which fosters critical reasoning, argumentation, and communication skills crucial to understanding any area of law in its multiple dimensions.
Learning writing takes time, and practice. If law school were to become much more writing intensive—in an effort to confront the deteriorating quality of undergraduate liberal arts education in the United States, and also as a way to foster more critical and comprehensive understanding of the law—it may be that law school should continue to be 3 years. It may be that law should be returned to the undergraduate program, perhaps as an ‘honors program.’ It may be that law school should be 2 years, but with the proviso that every course—Civil Procedure, Property, Business Associations, etc.—must have a seminar-like writing component attached to it. Whatever the approach, I hope we can continue to see the importance of the liberal arts to law, and vice-versa.