How the structure of universities determined the fate of American legal education – A tribute to Larry Ribstein

Abstract

Prior to 1862, with insignificant exceptions, American colleges and universities were either strongly tied to a particular religious denomination or they reflected an elitist social consciousness that, like religion, helped define the “mission” of the schools. The non-profit status (usually a charitable trust) was perfectly consistent with this mission, as the last thing wanted by the founders was consumer sovereignty or a competitive market for higher education. There were no “departments” as we know them today and little intellectual specialization; philosophy, the classics and theology constituted the standard curricular fare. These schools were “vocational” only in the ancient sense of preparing students for the ministry or possibly elementary-level teaching. Other kinds of vocational training, such as for engineers, chemists, architects, lawyers, or doctors, was done overwhelmingly through either apprentice-type training (actually a form of proprietary education) or in proprietary institutions. There had to have been – very little is known about this – an enormous and thriving for-profit educational sector. All this changed with the establishment of the land-grant schools under the first Morrill Act in 1862 which eventually caused massive failures of both the private religious schools and the proprietary ones. The land-grant schools were highly vocational in their mission, but they retained the governing structure of their private not-for-profit predecessors, a structure consistent with the fact that no one in charge really wanted consumer sovereignty or a competitive market for students. Vocationalism, of course, mandated specialization, and the departmental system was born. Each department (or “school”, as in the cases of medicine and law) became a semi-autonomous “firm” competing outside their hallowed halls only for the most appropriate new colleagues, i.e. those who would fit most tranquilly – and ideologically – with the existing faculty. Since there were no proprietary interests and success could not be judged by profitability, a status hierarchy evolved among departments or schools. Attitudes and approaches adopted by the school at the top of the hierarchy would be filtered down the hierarchy because professors, aspiring to gain the next higher level in status (and, it so happens, money), would tend to reflect the positions prevailing in that next higher rung. Thus, at any given moment, a single ideology or methodology would tend to dominate throughout a particular field. In law, as in other fields with no constraining market to answer to, schools tend to reflect the intellectual and ideological preferences of the faculties at the standard-setting schools, and their quasi-governmental powers are rarely noted.