Professor Neal is Dean of the University of Chicago Law School. This article is from his statement at a panel discussion at a meeting of the Association of American Law Schools, San Francisco, December 28, 1969.
I want to begin by rephrasing what I take to be the proper subject of this discussion. There are different points of view from which one might consider the role of students in the governance of law schools but there is only one which seems to me to fit the purposes of this Association and this meeting. It is this: How can student participation in the governance of law schools improve the quality of law schools and of legal education?
Starting from that point of view, I may as well begin with a forthright disclosure of my own benighted convictions, confident that I shall at least perform the humble service of providing a decent target for those who will follow me on this panel. I see little reason to hope that our current absorption with the formal modes of student involvement in the governance of law schools is a path toward the improvement of legal education. I think it is a dreary road that leads to a dead end, one that exacts a heavy toll in time, uses the least important talents of our students and faculty, and carries us toward an environment that is more stifling than invigorating.
This view, which may be shocking, is not based on antipathy toward students nor on mistrust of their objectives, although I know that it may be misunderstood. Nor, I think, does it reflect a lack of appreciation of the contribution that some of them can make in proper ways to a better perception of the aims and methods of legal education. My antipathy is not to students but to the idea of governance as a guiding principle in the enterprise of education. My concern is that preoccupation with the role of students leads inevitably to preoccupation with governance, and magnifies the role of governance in an endeavor that should have as little of it as possible.
A Dull Part of Education
Questions of student participation apart, it is unlikely that we would find ourselves today talking about problems of the governance of a law school. Some rather drab subjects have from time to time made their way into programs of this Association or into the pages of the Journal of Legal Education, but happily the topic of governance has not been prominent among them. I suppose that until now most would have regarded it as a non-subject, and it is a significant but gloomy commentary on the state of affairs that we could muster this much of an audience to hear a discussion of it now.
The students who seek formal modes of exerting their influence on the character of a law school have a misconception about the nature of the enterprise and an illusion about how it in fact operates. What is true of universities is equally true of law schools, and I cannot put the point better than Harry Kalven has recently done in speaking of universities: "The heart of the activity—what one studies, thinks about, teaches, does research on, those activities which are the reason for his being at a university, are by a proud tradition placed virtually beyond the reach of governance. Ideally, a university is a collection of anarchists, each being allowed to pursue truth in his own way. In a deep sense, the better the university, the less there is to govern. And the least interesting aspects of university life are those which are subject to governance. The organizational principle of the university… is anarchy—the right kind of anarchy."
This is not mere rhetoric designed to parry student ambitions and not a mere statement of an ideal. It is closer to a description of the reality than any table of organization would b. How little there is of governance in the ongoing business of a law school is something soon learned by most faculty members and all deans. It will be said, and of course it is true, that there are committees on this and that, there are meetings, there are reports, and the faculty occasionally does something by vote. But ordinarily this is a fitful and desultory process. The issues of policy that get resolved by this process in ordinary times are surprisingly few. The number that are important is even smaller, and the number that have to do with improving the quality of legal education is almost negligible.
Ideas Not Born in Committee
We need to ask ourselves how it is that innovation and reform come about in law schools. It is not by governance. It is seldom by committees. I venture that none of us could name a half-dozen committee reports that have exerted a strong influence on legal education, either in general or in individual law schools. And even where a significant committee report can be identified, I am confident that investigation would show that it was largely the work of one man.
The reason is not obscure. Our problems are in the realm of ideas and, even more important, the elaboration and implementation of ideas. They have little to do with arriving at a common will, which is the business of governance. A committee may resolve that urban studies should be developed, or even that particular courses should be offered. Nothing will come of it, and indeed the idea itself is unlikely to be propounded, unless there is a particular individual who sees it as important to engage in the painful creative task of exploring the field, organizing its problems, and putting together a course. To take but one example, can one imagine that Henry Hart’s course on the Legal Process could have been born in committee? Where is the striking course or the important field of the law whose addition to the law school curriculum owes its genesis to the work of a committee or the deliberations of the faculty?
When one turns to other areas of the enterprise in which committees customarily function, such as admissions, administration of academic rules, and the appointment and promotion of faculty members, the problems are different but the same general question is appropriate: What reasons are there to believe that participation by students will improve the overall quality of the judgments that are made? Putting aside all other difficulties, how are the students to be found who will have the capacity, the sustained interest, and the desire to spend their time in such unproductive fashion, that will enable them to do a better job than the faculty members who presently carry out these generally unwelcome responsibilities?
The number of faculty members who function effectively on committees is itself small. It takes time to learn who they are; it takes experience for them to learn to work efficiently in these routine areas of school administration. It seems to me extraordinary to suppose that there are significant gains in the efficiency or quality of these activities to be found in any available procedure for choosing students or of using them in the short time they can serve. To the contrary, I am reasonably confident that the effort to do so involves substantial losses in the efficiency if not the quality of the process.
How Students May Help
Such negative views do not imply that students have nothing to contribute to the policy of a school or to the direction in which legal education will move. The point is that there are abundant opportunities for that contribution to be made without obsession with the empty questions of structure and governance. We need ideas. We need to take account of the criticism and the special perspective that new generations of students bring to our problems. Those students who have something to say should find no difficulty in getting attention for compelling ideas and persuasive arguments. I cannot imagine a faculty that would not welcome or be influenced by a thoughtful and well-reasoned report of an individual student or a group of students on any problem of legal education. Such reports being as rare as they are in the case of faculty members, the opportunity is in a sense very great.
One would think that law students especially would respond to this challenge if they are interested in the problems, since they have chosen a career that puts high value on the arts of reasoned analysis and persuasion. But this kind of contribution is one that not many students are able or willing to make. Hard work is involved. The stock of ideas that students can bring to old and difficult problems is understandably limited. The most capable students will recognize the difficulties and, for the most part, will rightly conclude that there are better and more interesting ways to use their time. The result is, I am afraid, that most efforts of students to become involved in these matters take the form of superficial proposals based on whatever happen to be the current clichés of reform that leap from one law school to another.
We should by all means encourage thoughtful consideration of the problems of legal education by students, and listen to what they have to say. I doubt very much that the process is going to be much advanced in the long run by institutional arrangements, whether in the form of joint committees, parallel committees, representation at faculty meetings, or whatever other devices a particular school may see fit to adopt. There seems little reason to believe that whatever contributions students can make cannot be made by them as students rather than as participants in governance. The elements that make for excellence in a law school are ideas, intellectual climate, and incentives. More governance will not improve these elements. In relation to the environment of a law school, governance is really a form of pollution. If we would preserve the vitality of our institutions, we must hope that we will recognize governance for what it is before it is too lat. Perhaps it is already too late.
Society’s an edifice
Carved out of human flesh,
Unknowable and limitless,
Stretching from man’s dawn
To his eventual demise.
The master plans are lost,
Or never were designed,
And vain, untutored men
Seek glory as its architects
Crumbling and rebuilding, endlessly,
Over mounds of shattered lives.
King or shaman,
Demagogue or priest,
Bureaucrat or labor leader
—Tyrant after tyrant,
Knowing our insane cupidity,
Using our own blood as bait,
Have lured us into slavery or slaughter.
What hope is there for us
To break this vicious cycle?
None, or nearly none,
Until we see with crystal clarity
That each man must support himself
—And share his talents with the world,
In fair exchange for other values
Freely offered by his brothers everywhere.
RICHARD L. ROPIEQUET, President Alta Industries, Inc., Portland, Oregon