Building a Better Legal Education

“Build to-day, then, strong and sure,
With a firm and ample base;
And ascending and secure
Shall to-morrow find its place.”

-H.W. Longfellow-

Since the ostensible end of the COVID pandemic, and with the return of students to in-person classes, America has seen an interesting shift on law school campuses. Observers note a rising wave of activist students that the National Jurist called “the protest generation.”¹ Examples abound, including the infamous cancelation of Kristen Waggoner at Yale Law School and Judge Kyle Duncan at Stanford Law.² Students are no longer just attending classes to become proficient in the use of legal knowledge toward the service of clients and the community writ large, but instead are hoping to transform the legal curriculum in accordance with ideological commitments.

The consequences include demands for changes in the curriculum to accommodate pedagogical preferences rooted in political ideals and emotional comfort and the refusal to collaborate with others that they deem to be misaligned with their mission and purpose.³ Students have turned to a system of moral proximity linked to purified notions of negative association that would keep them apart and in a constant state of animosity, lest they become complicit with the sins of others. In short, many students have grown disenchanted with the law and have turned toward novel measures in order to ensure that legal education better serves their sentiments and ideations.

The Changing Character of Law School

To be clear, my rejection of the activist model is not an attempt to offer a blanket reaction to activism. Instead, my critique is simply this: any model based on treating students as activists shortchanges their education by offering them a deficient means for becoming capable citizens upon graduation. It stunts their intellectual and ethical growth by rendering the model in the image of the activist who avoids differing viewpoints instead of choosing the path toward deeper understanding, growth and development. A path of perseverance, in the words of James 1:4, is the better course—one that yields fruits of maturity and integrity. A path that will render those same students much more capable of achieving their reformed goals through the application of practical wisdom and emotional intelligence. It will inevitably inculcate what Yale law professor Anthony T. Kronman calls the idea of the greatness of soul, writing that without this cultivation, “human life becomes smaller and flatter . . . both less noble and less tragic.”⁴

Toward Civil Communities

To reverse some of these instincts toward an activist model, law schools must cultivate a community seeking to promote civility, open-mindedness, and dialogue. They must create private forums for open contestation, stripped of performative occasions (e.g., audio and visual recordings, social media) with the focus on mutually agreed upon collaborations to seek the welfare of the legal community. Forums must educate students to cultivate better instincts for the direction of their lives and how they honor their respective roles in society.

Thankfully, some have already begun this process. For example, in response to many of these campus controversies, the Federalist Society hosted an important conversation last year on the role of law schools in promoting civility.⁵ During these events, panelists weighed in on the necessary next steps for change, among them advocating for the creation of better policies, enhancing student-to-student interactions, and encouraging a diversity of speakers. A similar series of conversations is also currently taking place between six sponsoring universities in an international webinar format called The Flourishing Student, organized by the Jubilee Centre for Character and Virtues. The stated focus of this series was on how higher education can cultivate the character and attributes required for human flourishing.⁶ Here, many of the panelists discuss the importance of developing virtue, civic responsibility, and the role of the university to educate better citizens.

This is where the new book by John Inazu is of most use. Inazu is a renowned law professor and First Amendment expert at Washington University School of Law, who published a widely cited book six years ago entitled Confident Pluralism where he advocated for a pluralistic model for civic engagement. His new book continues his project by encouraging, as the sub-title suggests, a process for navigating differences with empathy and respect. Focusing on his life as a law professor, Inazu chronicles what a typical school year for him entails: from grading papers to dealing with student concerns to surviving faculty meetings. And while the book reads like a memoir, it also includes a series of astute underlying policies for how to create a more just and civil law school environment. In particular, Inazu provides three important features that law schools should promote—including teaching students how to: (1) navigate difference and disagreement, (2) develop empathy, and (3) thrive amidst ambiguity. Throughout the book, Inazu applies these goals, mindful of important pedagogical principles that undergird these efforts.

For one, Inazu mentions that law professors are training lawyers, not activists.⁷ This is of particular importance given the above-noted trend toward a model reactive to student preferences. Navigating differences proves difficult when activism often demands filtered associations. Second, Inazu notes the importance of having difficult conversations without forgetting the cost they entail.⁸ Law students are constantly wrestling with the balance of time and often an improper balance creates a break-down of community manifested in seeing others through instrumental lenses.⁹ No longer is your classmate a person of equal worth and dignity, but now either an opportunity for personal advancement or a deterrence for the use of time toward “getting ahead.” While Inazu mentions this in the context of emotional labor, I see the toil of dialogue to be connected more broadly to the management of the self. Finally, Inazu does well not only to encourage honesty to generate more authentic relationships but also to teach the importance of understanding that “well-intentioned people can have differing beliefs without being evil.”¹⁰ As a recent study shows, Gen. Z’s biggest skills gap that is fueling their social anxiety at work is an inability to manage ambiguity. Law practice is anything but a profession of clear rules and procedures.¹¹ The behavior of opposing counsels and judges often requires a high level of creativity and improvisation. (Not to mention the ongoing trend among lawyers turning to substance abuse to manage stress or the introduction of artificial intelligence that will require a rethinking of the role of lawyers.)

All this comports well with the need for law schools to begin preparing students to better engage their complex world. As Inazu suggests, this begins with preparing students to embrace a model of pluralistic confidence, cultivating the virtue of empathy, and learning how to deal with their stress in constructive ways without censoring their classmates or converting the law school curriculum into a self-serving institution.

Conclusion

In Luke 7, we find an episode where a woman of poor repute is seen drawing near to Jesus Christ in an act of desperation and hope. In response, the Pharisees grumbled, saying: “[i]f this man were a prophet, he would have known who and what sort of woman this is who is touching him, for she is a sinner.”  The scandal for them, writes Darrell Bock, was one of defilement brought on by the woman’s “ongoing contact with Jesus” and his tolerance of her action.¹² In the law school setting, students must likewise embrace a selfless model of embracing difference and being associated with students of various beliefs. They must resist the temptation of rendering their studies to be guided primarily through a politicized model of self-preservation and emotional need. But more than that, law schools must also create forums dedicated to open dialogue rooted in an effort for future collaboration—forums where students can be together and let the curative power of physical proximity run its course.

In a recent forum hosted by Stanford, for example, aimed at discussing the steps necessary to restore an inclusive civil discourse on campus, “most of the invited progressives, which is to say the group that currently dominates campus debates, refused to come.”¹³ That is not the right attitude for students to embrace and certainly will make their work after graduation increasingly partisan and thus less effective for serving a broader community.

In the work of John Inazu, we find helpful starting principles, but it is only in the dirty contest of getting to know your peers that the application of these principles can be tested in the ambiguity of difference. In his words, students must be encouraged to embrace grace and nuance, because “[e]veryone you meet is far more than whatever impression you have formed in your brief encounter with them.”¹⁴

1. Julia Brunette Johnson, “The Protest Generation,” National Jurist, August 10, 2023, https://nationaljurist.com/national-jurist-magazine/the-protest-generation/.
2. See David Lat, “A Controversial Speaker Returned To Yale Law—You Won’t Believe What Happened Next,” Original Jurisdiction, Jan. 26, 2023, https://davidlat.substack.com/p/a-controversial-speaker-returned; David Lat, “Yale Law Is No Longer #1—For Free-Speech Debacles,” Original Jurisdiction, March 10, 2023, https://davidlat.substack.com/p/yale-law-is-no-longer-1for-free-speech.
3. One example of this is the ongoing tension between the Black Law Students Association (BLSA) and the Federalist Society. See, e.g., Stephanie Francis Ward, “Stanford Law’s Black Law Students Association Pulls Out of Recruiting Activities after Federalist Society Event,” ABA Journal, April 19, 2023, https://www.abajournal.com/web/article/stanford-law-blsa-chapter-pulls-out-of-recruiting-activities-after-federalist-society-event; Sabrina Ticer-Wurr, “Columbia Law School Affinity Groups Boycott Admissions Process,” Columbia Spectator, March 31, 2023, https://www.columbiaspectator.com/news/2023/03/31/columbia-law-school-affinity-groups-boycott-admissions-process/.
4. Anthony Kronman, The Assault on American Excellence (New York: Free Press, 2019), 15.
5. See The Federalist Society, “Discussion, Coercion, and The Pursuit of Truth [State of Law Schools Series],” Feb. 8, 2023, YouTube video, 1:29:46, https://www.youtube.com/watch?v=UPUq6fkhM8s; The Federalist Society,“‘Civility in the Law’ DC Lunch,” June 6, 2023, YouTube video, 58:41, https://www.youtube.com/watch?v=W1PW98uMDGg.
6. “The Flourishing Student International Webinar Series,” University of Birmingham, accessed March 8, 2024, https://www.jubileecentre.ac.uk/?p=7830.
7. John Inazu, Learning to Disagree: The Surprising Path to Navigating Differences with Empathy and Respect (Grand Rapids: Zondervan, 2024), 3.
8. Inazu, Learning to Disagree, 61.
9. See Anton Sorkin, “On the Question of Time in the Legal Profession,” Cross & Gavel, Substack, September 29, 2023, https://crossandgavel.substack.com/p/on-the-question-of-time-in-the-legal.
10. John Inazu, Learning to Disagree, 93, 123.
11. See Michelle P. King, “Gen Z’s Biggest Skills Gap That Is Fueling Their Social Anxiety at Work: Managing Ambiguity,” Fortune, October 6, 2023, https://fortune.com/2023/10/06/gen-z-biggest-skills-gap-social-anxiety-work-managing-ambiguity-michelle-king/#.
12. Darrell L. Bock, Luke: Volume 1: 1:1-9:50, Baker Exegetical Commentary on the New Testament (Grand Rapids: Baker Academic, 1994), 697.
13. Pamela Paul, “Civil Discourse on Campus Is Put to the Test,” New York Times, March 7, 2024, https://www.nytimes.com/2024/03/07/opinion/school-dei-college-diversity.html?smtyp=cur&smid=tw-nytopinion.
14. John Inazu, Learning to Disagree, 93, 78.