Combating the Rot in America’s Law Schools

It is a sad fact that at most university law schools in South Africa, a student can graduate without ever having set foot in a courtroom, and without ever having spoken to, or on behalf of, a person in need of advice or counsel. The past several years have witnessed a swelling chorus of complaints that the current LLB curriculum produces law graduates who were "out of their depth" in practice. My purpose is to make a case for the inclusion in the LLB curriculum of a course in trial advocacy. This endeavour of necessity invokes the broader debate over the educational objectives of a university law school – a debate memorably framed by William Twining as the two polar images of "Pericles and the plumber". My thesis is that the education of practising lawyers should be the primary mission of the university law school. The first part of this contribution is a response to those legal academics who hold that the role of the law school is to educate law students in the theories and substance of the law; that it is not to function as a trade school or a nursery school for legal practice. With reference to the development of legal education in the United States, I argue that the "education/training" dichotomy has been exposed as a red herring. This so-called antithesis is false, because it assumes that a vocational approach is necessarily incompatible with such values as free inquiry, intellectual rigour, independence of thought, and breadth of perspective. The modern American law school has shown that such so-called incompatibility is the product of intellectual snobbery and devoid of any substance. It is also often said that the raison d'être of a university legal education is to develop in the law student the ability "to think like a lawyer". However, what legal academics usually mean by "thinking like a lawyer" is the development of a limited subset of the skills that are of crucial importance in practising law: one fundamental cognitive skill – analysis – and one fundamental applied skill – legal research. We are not preparing our students for other, equally crucial lawyering tasks – negotiating, client counselling, witness interviewing and trial advocacy. Thinking like a lawyer is a much richer and more intricate process than merely collecting and manipulating doctrine. We cannot say that we are fulfilling our goal to teach students to "think like lawyers", because the complete lawyer "thinks" about doctrine and about trial strategy and about negotiation and about counselling.

The expansion of Western education overseas has been both an economic success, if the numbers of American, European, and Australian universities setting up campuses in Asia and the Middle East is a measure -- and a source of consternation for academics concerned with norms of free inquiry and intellectual freedom. Faculty at Western campuses have resisted the new satellite campuses, fearing that colleagues on those campuses would be less free to teach and engage in intellectual inquiry, and that students could be denied the free inquiry normally associated with liberal arts education. Critics point to the denial of visas to academics wishing to carry out research on foreign campuses, the sudden termination of employment at schools in both the Middle East and Asia, or the last-minute cancellation of courses at those schools, as evidence that they were correctly suspicious of the possibility that liberal arts programs could exist in those regions. Supporters of the project have argued that opening up foreign campuses brings free inquiry to closed societies, improves educational opportunities for students who would otherwise be denied them, or, perhaps less frequently, that free inquiry will be no more pressured than in the United States or Western Europe. Normative Tensions examines the consequences not only of expansion overseas, but the increased opening of universities to foreign students.

The expansion of Western education overseas has been both an economic success, if the numbers of American, European, and Australian universities setting up campuses in Asia and the Middle East is a measure -- and a source of consternation for academics concerned with norms of free inquiry and intellectual freedom. Faculty at Western campuses have resisted the new satellite campuses, fearing that colleagues on those campuses would be less free to teach and engage in intellectual inquiry, and that students could be denied the free inquiry normally associated with liberal arts education. Critics point to the denial of visas to academics wishing to carry out research on foreign campuses, the sudden termination of employment at schools in both the Middle East and Asia, or the last-minute cancellation of courses at those schools, as evidence that they were correctly suspicious of the possibility that liberal arts programs could exist in those regions. Supporters of the project have argued that opening up foreign campuses brings free inquiry to closed societies, improves educational opportunities for students who would otherwise be denied them, or, perhaps less frequently, that free inquiry will be no more pressured than in the United States or Western Europe. Normative Tensions examines the consequences not only of expansion overseas, but the increased opening of universities to foreign students.

The extensive use of the internet and digital technology in the workplace, including universities, has transformed the work style of employees, faculty members, and students. On the one hand, it has helped employees communicate, coordinate, and collaborate on a 24/7 basis around the world, which in turn has improved productivity and work performance. However, on the other hand, it has made employees vulnerable to monitoring and invasion of privacy. Many faculty members and students feel that surveillance and computer monitoring are compromising their intellectual freedom, the right to free inquiry, and digital privacy. This study addresses how the use of computer monitoring affects the morale and performance of faculty members and students for their intellectual and free inquiry. The study uses the survey method to interview professors and students to analyze their responses with regards to monitoring their online activities.

Academic freedom seems to be under assault from all political angles. Opposed sides invoke academic freedom when it serves their purposes but ignore it when doing so serves the purposes of attacking their political enemies. Most at risk in the midst of these on-going battles is the future of the university as a space for free inquiry, debate, criticism, and the extension of human knowledge in all fields of intellectual inquiry. As a step towards safeguarding the future of the university as a space for open inquiry, the meaning and value of academic freedom needs to be clarified. While it is often (and understandably) identified with the constitutional right to free speech, it is in fact different in significant respects. Academic freedom is both a broad principle of free inquiry and argument upon which the university as an intellectual institution rests and a narrow collective agreement right. In both dimensions it is subject to limitations to which the right to free speech is not subject (curricular decisions, for example, must pass the test of relevance to the subject matter, while there are no constraints on introducing extraneous material into public political debates). Since all academics’ professional lives depend upon the institutional commitment to academic freedom, those who would undermine it in favour of their political priorities contradict themselves and raise questions about their fitness for the vocation of teacher-researcher.

This paper explores the connections between scientific inquiry, scholarly reflexivity, and enlightenment. I argue that the free intellectual inquiry essential to the practice of science is a fundamental constituent and enactment of human dignity, freedom, and democracy. The expansion and diffusion of these values are both unavoidable in the modern age and immensely valuable, even if there are of course many obstacles to their expansion and no guarantees of their ultimate realization. This process of scientific inquiry also contains the seeds of a discourse ethic with broader ramifications for public enlightenment and perhaps even democratization. I develop these themes through a dialogue with some of the writings of Professor Yu Keping on the topics of Chinese political science and “incremental democracy.”

Amongst the many aims of education, surely the pursuit of global peace must be one of the most significant. The mandate of UNESCO is to pursue world peace through education by primarily promoting collaboration. The sort of collaboration that UNESCO endorses involves democratic dialogue, where various persons from differing backgrounds can come together, listen, negotiate and discuss possible ways in which peace might be pursued. While this sort of democratic dialogue with its associated free intellectual inquiry is more readily acceptable for issues dealing with problems in the realm of physical nature, it is not so easily tolerated in the realm of ethics and values. Indeed inquiry into the realm of ethics by Kierkegaard has been described by Levinas to be a form of violence. Similarly John Dewey's work has been included in a list of the ten most harmful books by some conservatives in the United States because he promoted inquiry into morals and religion. Dewey argued against the assumption that there are two‐realms—one physical and one moral. He and Kierkegaard both encouraged democratic inquiry into ethics, which is the sort of collaboration recognised by UNESCO as being necessary if we are to pursue world peace. Yet such investigations can be considered by some to be violent and harmful. It is argued here that pursuing inquiries into ethics and aims of education, while appearing to challenge the status quo, should not be construed as being violent but rather should be understood as democratic and educative.

The History of the University of Oxford, Volume VI: Nineteenth-Century Oxford, Part 1. Edited by M. G. Brock and M. C. Curthoys. (New York: Clarendon Press, Oxford University Press. 1997. Pp. xxxviii, 806. $145.00.) This book, part of the official history of the University of Oxford, is indispensable for understanding the modernization of nineteenth-century Oxford. It consists of a collection of essays, some of which trace the narrative of the reform of the university culminating with the passage of the University Tests Act in 1871 and topical chapters that include the university's finances, changing curriculum, including the development of its classical emphasis (Greats) and the natural sciences, well essays on university institutions up to 1914. The narrative line in the book traces the transformation of the university from a confessional (Anglican) university to a substantially national (secular) one. Anyone who has pondered the themes of Ex Corde Ecclesiae would benefit from reading in this volume. To its credit, this study takes seriously the claims of the older confessional university while pointing to many areas in teaching and scholarship greatly in need of reform, although it does ultimately accept the secular liberal article of faith that free intellectual inquiry and a religious confession for the university are incompatible. M. G. Brock pictures an Oxford in 1800 in which the colleges, the true centers of the university, were controlled by clergymen, were the institutions that controlled the university (p. 9). Fellows of the colleges were expected to remain unmarried (although college heads could marry), giving colleges a monastic feel (p. 28). In an age of revolution, Oxford had adopted classics in 1800 as a bulwark against the jacobins (p. 14). The role of divinity in the curriculum was actually small, but what there was, the study of the Gospels in Greek, the Thirty-Nine Articles of the Church of England, and Butler's Analogy ofReligion, was basic and required. The linchpin of the confessional university was the requirement that no student could matriculate in a college without subscribing to the Thirty-Nine Articles (subscription in Cambridge was reserved a condition of graduation) (p. 11). In a splendid chapter, L. W B. Brockliss places Oxford in the context of European universities in the revolutionary era from 1789 to 1850. He points out that Oxford and Cambridge were anomalies in Europe in retaining their emphasis on the arts (p. 81). Oxford in 1800 was what universities had been from 1200 to 1600. Each of the subjects of study had been united, since the Renaissance, through the same analytical tools: humanist exegetical techniques and Aristotelian verbal logic. …

The history of the Fulbright program in Africa is one of slowly growing political and economic interest in the continent and an ongoing adjustment to radical political and social changes. The program has followed the directive of avoiding all appearances of cultural imperialism and keeping apart from political or bureaucratic interference. Responding to the growth of universities in Africa and the expanding interest and expertise of American students and scholars, the program grew rapidly in the 1970s and was strengthened in 1978 with the addition of the Hubert H. Humphrey North/South Fellowships for midcareer civil servants and in 1980 by the University Affiliation Program and the African-American Issues Center Program. The Fulbright has been largest in the largest countries or those of greatest interest geopolitically to the United States—Nigeria, South Africa, Kenya, Tanzania, and Liberia. The Republic of South Africa presents the greatest challenge to an exchange program founded on academic excellence and free intellectual inquiry.

An early twenty-first century effort by a national organization of lawyers and scholars in the United States to revise the law of employment provoked bitter disagreement over the proper contours of the law governing employee use of knowledge in competition with current or former employers. The controversy replicates a centuries-old debate over legal restrictions on employee mobility. Since the American colonies first began to recruit skilled British artisans to emigrate in violation of British law, Anglo-American courts and lawyers have disputed whether restrictions on employee mobility help or hinder economic development and free intellectual inquiry. While some uses of confidential workplace knowledge in post-employment competition may be wrongful, many recognize that information flows associated with employee mobility foster innovation. Moreover, as knowledge is inevitably both an attribute of employees and an asset of companies, strong moral as well as practical considerations limit the extent to which companies can and should invoke law to prevent competition from former employees.Businesses are even less likely than lawyers to reach a consensus about the desirable level of protection against competition from former employees. In cases pitting an enterprising employee against his or her former employer, it is always in the company’s interest to restrict employee mobility. In the aggregate, however, companies benefit from employee mobility at least as much as they are harmed by it, for departing employees usually go to work for other companies that recruit employees to gain the benefit of their knowledge. Although some companies may believe they will be net consumers of technology developed by others and thus may want relatively lax restrictions on employee mobility, others may believe they are and will remain industry leaders or technology pioneers and may want stronger protections.This chapter responds to an invitation to offer lessons from the past to inform debates about the proper scope of legal regulation of postemployment competition. I offer two. The first is that the relationship between law, the rate and direction of innovation, and the welfare of a region or an economy as a whole is difficult to assess objectively and the optimal legal rules are likely to be a matter of substantial controversy. From the persistence of controversy flows the inescapable fact that clarity and precision in the law are unlikely to be obtained. The lack of legal clarity stymies efforts to identify which legal rules are correlated with which patterns of economic development, simply because it will be hard to know what companies and employees actually regarded the law as being and what legal rules actually were enforced.A second lesson of the past is that the norms of the workplace and the industry have always been as important as the law in determining the transmission of knowledge from employee mobility. In some eras, industries, and companies, employees controlled quite a bit of the intellectual property they produced. In others they did not. Even companies with restrictive policies toward IP ownership and postemployment competition negotiated individual arrangements granting some employees substantial control over their ideas. Moreover, scholarly and trade press literature documenting the twentieth century history of large companies’ knowledge management policies suggests that companies with internal labor markets struggled to develop suggestion systems and other policies to motivate their employees to innovate. Thus, companies recognized the importance of norms even as they confronted limits on their power to create or change them.The conclusion that follows from these two lessons is that robust economic development can occur in legal regimes that treat employee knowledge as mobile and in those that treat it as the property of the employer and restrict knowledge mobility. Relatively little is known about the optimal level of restrictions on knowledge transmission associated with employee mobility. In the US, until the late nineteenth century, companies had few legal rights to restrict competition or use of knowledge by former employees, yet the nineteenth century witnessed rapid economic growth and technological development.1 Moreover, as scholars who have studied the growth of computer technology in the middle and late part of the twentieth century have shown, Silicon Valley grew notwithstanding, and may even have prospered precisely because, California does not enforce non-compete agreements against employees and Silicon Valley employers seldom resorted to trade secret litigation before the 1990s.2 In the early- and mid-twentieth century, however, some innovative companies did restrict transmission of employee knowledge. Both knowledge-protective legal regimes and lax legal regimes have existed in places and periods of economic growth.

Intellectual diversity is sadly lacking in academia today. And given the current campus culture of trigger warnings, micro-aggressions, hate speech codes, and bias response teams, there is a feedback loop that makes fixing the problem especially difficult. Why would a qualified conservative want to go into academia given that campus culture? In this presentation, Professor Heriot expressed pessimism about the likelihood that this can be easily corrected. Colleges and universities are designed as institutions to disperse power widely so as to make it impossible for any group to impose their will on the university. This feature has generally served academia well. But it also means that when things go seriously awry, it is hard to right the ship. Of the partial solutions she suggests, the one she has the greatest confidence in is the idea of reducing federal influence over higher education. For example, a university that is not in compliance with Title IX will get its funding cut off (and rightly so). But what is viewed as a violation of Title IX these days has gotten way out of hand. When Title IX is being interpreted in ways that tend to stifle free inquiry, when it is being interpreted in ways that deny any semblance of due process to those accused, it is being misinterpreted.

John Henry (18011890) had a remarkable influence upon his age. variety of discourse in his works reflects the many contexts in which he engaged in dialogue, ranging from secular and religious controversies to the speculative realm of philosophical thought. Despite an insular temperament and retiring personality, in fact inspired radical nineteenth-century intellectual inquiry. This collection arises from papers presented during the three-day Centenary Conference at Saint Louis University. In it, the contributors enter a critical dialogue with s writings from the perspectives of literature and history, rhetoric and education, and philosophy and theology to offer a scholarly appraisal of s creativity and genius. fundamental interaction between discourse and context that pervades s many works provides the thread that weaves this collection together. There are five major divisions in the book. In part 1, the essays on s individuality portray the highly personal and controversial dimensions of his thought. essays in part 2, on s approach to understanding, reveal a keen sense of the historical nature of practical reason. In part 3, essays on s view of education evaluate his celebration of free inquiry and sensitivity to culture. s insistence upon personal commitment to apprehend historical reality, both secular and religious, spurs the essays in part 4 to assess his religious epistemology and theological method. essays in part 5 investigate the ways in which the subsequent interpretation of s thought warrants a legitimate diversity that mirrors a variety of historical contexts. essays contained in this volume reflect the increasing richness of literature on studies while constructively expanding the boundaries of interdisciplinary scholarship. As a result, they provide diverse horizons for engaging s insights through the use of contemporary scholarship. cluster of issues they discuss portrays the enduring prominence of today. contributors and their articles to this volume include Gerard Magill, The Intellectual Ethos of John Henry Newman; Edward E. Kelly, Identity and Discourse: A Study in s Individualism; Kenneth L. Parker, Newman s Individualistic Use of the Caroline Divines in the Via Media; Mary Katherine Tillman, Economies of Reason: and the Phronesis Tradition; Walter Jost, Philosophic Rhetoric: and Heidegger; Alan J. Crowley, Theory of Discourse: and Ricoeur; James C. Livingston, Christianity and Culture in s Idea of a University; Edward Jeremy Miller, Newman s Idea of a University: Is It Viable Today?; M. Jamie Ferreira, The Grammar of the Heart: on Faith and Imagination; Gerard Magill, The Living Mind: on Assent and Dissent; C. J. T. Talar, Receiving s Development of Christian Doctrine; Lawrence Barmann, Theological Inquiry in an Authoritarian Church: and Modernism.