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Theory 1 and Theory 2 in Law School: A Strangelovian Review

I saw and read Louis Menand’s recent essay in The New Yorker, “Live and Learn: Why We Have College,” just in advance of my own daughter’s recent college graduation.  Menand is pondering the present and future of American higher education at a time when, by some accounts, far too many students are enrolled in far too many programs for far too many (and some of the wrong) reasons.  He posits two models of education, and of student:  Theory 1, which holds that college is basically a giant sorting mechanism based (he argues) on intelligence and aptitude, and Theory 2, which holds that college is there to enlighten and empower and socialize.  Meritocratic aims (Theory 1) are blended with democratic aims (Theory 2) in the current system, which renders it a muddle, even in elite colleges, which hold themselves out as models of Theory 2 ideals when in practice they operationalize Theory 1 aims.

Menand’s account isn’t really new (and in some respects I think that it’s incomplete), but he distills it in an engaging way, and it got me thinking about what it means not just for undergraduate education (as I and fellow New Yorker readers sat through my daughter’s commencement) but for graduate and professional education and specifically for law school — when, by some accounts, we have far too many students enrolled in far too many programs for far too many (and some of the wrong) reasons.

Even in middle of the USNews pack regional law schools like mine (Pittsburgh), we have Theory 1 students and Theory 2 students.  Equally important, but in different proportions, we have Theory 1 faculty and Theory 2 faculty.  My estimate is that many law schools, including mine, have a proportion of Theory 2 faculty that is significantly larger than their proportion of Theory 2 students.  At the margins — at the top, with Harvard, Yale, and so on, and at the bottom (fill the blanks here with your own candidates) — those proportions may be more likely to align.  I’ll offer a hypothesis:  identity anxiety suffered by law faculty and law schools is largely attributable to the same sociological indeterminacy that Menand describes for college education.  Schools that are comfortable in their own skin are reliably Theory 1 schools or Theory 2 schools.

Is there anything that can be done about this?  Should be done?  Does it matter?  I wouldn’t suggest that a Theory 1/2 school try to move (or be moved) to one end of the spectrum or another; educational institutions are rarely capable of such purposeful strategic behavior.  But what about the internal dynamics of a given school?  If law professors at a lot of schools are Theory 2 people trying to teach Theory 1 students, is that a problem?   Maybe not; it depends in large part on who and what law schools are trying to do, or what a given law school — or faculty member — is trying to do.  To the extent that law schools are trying to produce lawyers who will serve clients, maybe we need more Theory 1 faculty to teach Theory 1 students.   Operationalize that in different ways, with practitioners as adjunct faculty, or with full-time faculty with deeper and broader experience as practitioners.  To the extent that law schools are trying to produce lawyers who will become civic leaders and participants in public policy debates (locally, regionally, nationally, globally), maybe we need more Theory 2 students working with Theory 2 faculty.  Law school would look and act much more like an advanced liberal (arts) education.  Different wings of a school or a faculty could have it the way that they wish; students could pick and choose their way to a degree.

We might argue instead (or in addition) that Theory 1 and Theory 2 people should spend more time together, in and out of the classroom, so that the mismash of types found currently in a lot of institutions is, on the whole, pretty much right.   I’m a Theory 2 person, but I teach a lot of Theory 1 students.  I suspect that a lot of legal education operates on that model.  Does it work?  Are there limits to the power of teaching that way?  Menand writes, about teaching writing to undergraduates to aren’t prepared to learn to write, because they haven’t gotten accustomed to reading:

If you read a lot of sentences, then you start to think in sentences, and if you think in sentences, then you can write sentences, because you know what a sentence sounds like. Someone who has reached the age of eighteen or twenty and has never been a reader is not going to become a writer in fifteen weeks. On the other hand, it’s not a bad thing for such a person to see what caring about “things that probably aren’t that exciting to most people” looks like. A lot of teaching is modelling.
I think that this is basically right, and I’d make the same point about law students, many of whom come to law school woefully underprepared as readers and as writers.  But that, as I recognize, is a very Theory 2 argument. 
Perhaps I should learn to stop worrying and love the law.