The rolse of Students in the Governance of Law Schools; P. C. Neal

This view, which may be shock ing, is not based on antipathy toward students nor on mistrust of their objectives, although I know that it may be misunder stood. Nor, I think, does it reflect a lack of appreciation of the con tribution that some of them can make in proper ways to a better 1970 THE ROLE OF STUDENTS ... 217 perception of the aims and meth ods of legal education. My antip athy is not to students but to the idea of governance as a guid ing principle in the enterprise of education. My concern is that pre occupation with the role of stu dents leads inevitably to preoccu pation with governance, and mag nifies the role of governance in an endeavor that should have as little of it as possible. A Dull Part of Education Questions of student participa tion apart, it is unlikely that we would find ourselves today talking about problems of the governance of a law school. Some rather drab subjects have from time to time made their way into programs of . this Association or into the pages of the Joumal of Legal Education, but happily the topic of govern ance has not been prominent among them. I suppose that until now most would have regarded it as a non-subject, and it is a sig nificant but gloomy commentary on the state of affairs that we could muster this much of an au dience to hear a discussion of it now.

The students who seek formal modes of exerting their influence on the character of a law school have a. misconception about the nature of the enterprise and an illusion about how it in fact op.. erates. What is true of universi ties is equally true of law schools, and I cannot put the point better than Harry Kalven has recently done in speaking of universities: "The heart of the activity - what one studies, thinks about, teaches, does research on, those activities which are the reason for his be ing at a university, are by a proud tradition placed virtually beyond the reach of governance. Ideally, a university is a collection of an archists, each being allowed to pursue truth in his own way. In a deep sense, the better the uni ver sity, the less there is to govern. And the least interesting aspects of university life are those which are subject to governance. The organi zational principle of the univer sity ... is anarchy - the right kind of anarchy."

This is not mere rhetoric de signed to parry student ambitions and not a mere statement of an ideal. It is closer to a description of the reality than any table of organization would be. How little there is of governance in the on going business of a law school is something soon learned by most faculty members and all deans. It will be said, and of course it is true, that there are committees on this and that, there are meetings, there are reports, and the faculty occasionally does something by vote. But ordinarily this is a fitful 218 THE FREEMAN April and desultory process. The issues of policy that get resolved by this process in ordinary times are sur prisingly few. The number that are important is even smaller, and the number that have to do with improving the quality of legal edu cation is almost negligible. Ideas Not Born in Committee We need to ask ourselves how it is that innovation and reform come about in law schools. It is not· by governance. It is seldom by committees. I venture that none of us could name a half-dozen com mittee reports that have exerted a strong influence on legal educa tion, either in general or in in dividual law schools. And even where a signifi.cant committee re port can be identified, I am con fident that investigation would show that it was largely the work of one man.

The reason is not obscure. Our problems are in the realm of ideas and, even more important, the elaboration and implementation of ideas. They have little to do with arriving at a common will, which is the business of governance. A committee may resolve that urban studies should be developed, or even that particular courses should be offered. Nothing will come of it, and indeed the idea itself is un likely to be propounded, unless there is a particular individual who sees it as important to engage in the painful creative task of ex ploring the field, organizing its problems, and putting together a course. To take but one example, can one imagine that Henry Hart's course on the Legal Process could have been born in committee? Where is the striking course or the important field of the law whose addition to the law school curriculum owes its genesis to the work of a committee or the de liberations of the faculty?

When one turns to other areas of the enterprise in which com mittees customarily function, such as admissions, administration of academic rules, and the appoint ment and promotion of faculty members, the problems are differ ent but the same general question is appropriate: What reasons are there to believe that participation by students will improve the over all quality of the' judgments that are made? Putting aside all other difficulties, how are the students to be found who will have the capac ity, the sustained interest, and the desire to spend their time in such unproductive fashion, that will enable them to do a better job than the faculty members who presently carry out these generally unwelcome responsibilities? The number of faculty members who function effectively on com mittees is itself small. It takes 1970 THE ROLE OF STUDENTS ••• 219 time to learn who they are; it takes experience for them to learn to work efficiently in these routine areas of school administration. It seems to me extraordinary to sup pose that there are significant gains in the efficiency or quality of these activities to be found in any available procedure for choos ing students or of using them in the short time they can serve. To the contrary, I am reasonably con fident that the effort to do so in volves substantial losses in the ef ficiency if not the quality of the process.

How Students May Help Such negative views do not im ply that students have nothing to contribute to the policy of a school or to the direction in which legal education will move. The point is that there are abundant oppor tunities for that contribution to be made without obsession with the empty questions of structure and governance. We need ideas. , We need to take account of the criticism and the special perspec tive that new generations of stu dents bring to our problems. Those students who have something to say should find no difficulty in get ting attention for compelling ideas and persuasive arguments. I can not imagine a faculty that would not welcome or be inti uenced .by a thoughtful and well-reasoned report of an individual student or a group of students on any problem of legal education. Such reports being as rare as they are in the case of faculty members, the op portunity is in a sense very great.

One would think that law stu dents. especially would respond to this challenge if they are inter ested in the problems, since they have chosen a career that puts high value on the arts of reasoned analysis and persuasion. But this kind of contribution is one that not many students are able or willing to make. Hard work is in volved. The stock of ideas that stu dents can bring to old and diffi cult problems is understandably limited. The most capable students will recognize the difficulties and, for the most part, will rightly con clude that there are better and more interesting ways to use their time. The result is, I am afraid, that most efforts of students to become involved in these matters take the form of superficial pro posals based on whatever happen to be the current cliches of reform that leap from one law school to another. We should by all means encour age thoughtful consideration of the problems of legal education by students, and listen to what they have to say. I doubt very much that the process is going to be much advanced in the long run by 220 THE FREEMAN April institutional arrangements, wheth er in the form of joint commit tees, parallel committees, repre sentation at faculty meetings, or whatever other devices a particu lar school may see fit to adopt.

There seems little reason to be lieve that whatever contributions students can make cannot be made by them as students rather than as participants in governance. The elements that make for excellence in a law school are ideas, intel lectual climate, and incentives. More governance will not improve these elements. In relation to the environment of a law school, gov ernance is really a form of pollu tion. If we would preserve the vi tality of our institutions, we must hope that we will recognize gov ernance for what it is before it is too late. Perhaps it is already too late. ~ IDEAS ON LIBERTY Society's Dilemma Society's an edifice Carved out of human flesh, Unknowable and limitless, Stretching from man's dawn To his eventual demise. The master plans are lost, Or never were designed, And vain, untutored men Seek glory as its architects Crumbling and rebuilding, endlessly, Over mounds of shattered lives.

King or shaman, Demagogue or priest, Bureaucrat or labor leader Tyrant after tyrant, Knowing our insane cupidity, Using our own blood as bait, Have lured us into slavery or slaughter. What hope is there for us To break this vicious cycle? None, or nearly none, Until we see with crystal clarity That each man must support himself And share his talents with the world, In fair exchange for other values Freely offered by his brothers everywhere. RICH ARD L. ROPIEQUET, President Alta Industries, Inc., Portland, Oregon ING IN A SEA OF BUTS LEONARD E. READ THERE were five of us, one an Austrian, at a pre-dinner get-to gether. These friends were each as near purists in the freedom phi losophy as one ever comes upon which is the only reason for men tioning one man's dissent. His dis sent seemed insignificant, but it's the minor deviations and incon sistencies of the philosophical elite - not the imitators among us that weigh so importantly against exemplary action.