Langdell, Eliot, and the Rise of Blogging
posted by Nate Oman
I, alas, missed the discussion and fireworks at the
AALS’s session on blogging, but it does strike me that blogs are a very nice illustration of one of the basic dilemmas that the legal academy faces. The American law school as a post-graduate institution staffed by specialized academics focused on research and publishing is a creation of Christopher Columbus Langdell and the Harvard Law School of the 1870s through 1900. It is no accident that the American law school came out of Harvard during this period. Langdell was hired by Harvard president Charles Eliot, who perhaps did as much as any other person to set the patterns of higher education in modern America. Eliot, in turn, was modeling Harvard — which became the model for America — on the great German research institutions of the 19th century. Hence, it was Eliot who pushed the notion of the Ph.D. as the necessary precondition for professorhood, and valorized disciplinary autonomy and specialization. In a very real sense, all American academics live in the world that Eliot made.
The problem, of course, is that the law school created by Eliot and Langdell carried within itself two anomalies that continue to haunt legal education in America. First, in contrast to the other academic career paths that Eliot was doing so much to regularize, law professors got the same education as their students. There is no special educational track for law professors, at least formally. The result, of course, has been an informal track, i.e. top-ten law school, law review, appellate clerkship, etc.. I actually think that the training provided by this informal track is quite good in many ways, but the legal professoriate continues to be haunted by anxiety about the academic status of their education. (This point is wonderfully illustrated by the fact that there is no consensus on what sort of academic regalia a juris doctorate is entitled to: Do they get a mortar board like bachelors degrees or masters degrees, or are they get to the soft square cap of the doctorates? Different schools take different positions.)
The second anomaly was Langdell’s faith in the law as a self-contained and autonomous discipline, a faith that began to crumble even as Langdell was evangelizing it. We like to think of the proliferation of various “law & ….” movements as a post-1970s phenomena. There is some truth to this. Indeed, I think that there are even good demographic reasons for the proliferation: The draft created enormous incentives for baby boomers to remain in graduate school for as long as possible, and as a result many humanities and social science minded people who would never have dreamt of jurisprudence packed themselves off to law school to avoid the Mekong delta. In the fullness of time, many of these war-created lawyers abandoned the practice of law for the academy, largely as a way of escaping a profession that they were never that interested in in the first place. Still, it is not as though the law reviews during the whole of the twentieth century did not play host to waves upon waves of anxiety about the intellectual status of legal thought.
It seems to me that at present there are two responses to these two anomalies. One approach, aggressively evangelized both within and without the blogosphere by Brian Lieter, is that law schools ought to follow the example of the rest of the academy. In other words, Langdell and Eliot did not go far enough. Law professors ought to have Ph.D.s. They ought to become experts in non-legal disciplines and acquire the methodological sophistication displayed by the practitioners of those disciplines. They ought to publish in peer-reviewed journals. In short, they ought imitate the narrow and highly specialized model of the rest of the academy.
The other model is that law professors ought to become public intellectuals. Rather than becoming specialized methodological grinds, they ought to exploit their position of disciplinary eclecticism (or dilettantism — take your pick) and become consumers, integrators, appliers, and — importantly — popularizers of ideas created elsewhere. For Lieter and his fellow-travelers, I suspect that this move looks like little more than an apologia for ignorance and sloppiness. Perhaps they are right. Indeed some of the time they no doubt are. On the other hand, the notable success of law professors moving into the role of public intellectual via blogging suggests that there is something to the alternative to disciplinary specialization. By inadvertently creating an institutional environment that resists disciplinary specialization, Langdell and Eliot may well have created the ideal seed bed for bloggers.
January 9, 2006 at 1:39 pm
Posted in: Blogging
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Responses (3)
Kaimi - January 9, 2006 at 8:23 pm
Nice thoughts, Nate. I agree with much of what you’re saying. And besides, who could possibly be better qualified to be a public intellectual than a law professor? At least, that perception is probably widespread — which goes a way towards explaining the ever-expanding size of the Dan Solove law-prof-blog census.
Daniel J. Solove - January 9, 2006 at 9:02 pm
This is a terrific post. Blogging does indeed touch a fault line in legal academia, and the debates about blogging definitely link up to the debates over legal academia more generally. Readers may be interested in the extensive comments and debate to a post of mine at PrawfsBlawg entitled: Do You Need a PhD to Do Competent and Cutting Edge Legal Interdisciplinary Work?
BL - January 10, 2006 at 9:43 am
I am glad Professor Solove posted the link to the earlier discussion, since Mr. Oman misstates my view. My view is certainly not that all law professors should have PhDs; my view is that those purporting to do interdisciplinary work should have PhDs or the equivalent formal training in the cognate disciplines.
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