How To Reform Law Schools: Boycott Law Clerks Or Divest Funding?

Judges Ho and Thapar favor different approaches.

On Wednesday, I was honored to hear Judge Amul Thapar deliver the Story Lecture at the Heritage Foundation. The theme of his lecture is that originalists courts need originalist classrooms. I couldn't agree more. At most law schools, originalism is taught, if at all, as something of a strawman. Professors will introduce it, briefly, and then spend the bulk of time explaining why the doctrine is incoherent. I can count on two hands the number of originalist constitutional law professors in the United States. Law schools are derelict in not hiring more of these scholars. Even if faculties reject originalism, they must recognize that courts are receptive of these arguments, and students need to be trained on originalism.

However, it seems that a different facet of Judge Thapar's remarks made headlines. Judge Thapar offered a proposal of how to ensure that law schools promote originalism.

"Make no mistake: money talks. Only when the taxpayers and donors alike demand it will law schools start to change," Thapar said. "When law schools do change, the hefty price paid for a law degree might actually be worth it, because lawyers will leave law school equipped to practice in today's courts."

Indeed, many legislatures in conservative states are taking a closer look at university curriculums. And several states have established classical institutes within colleges, some of which can confer degrees, to provide students with a different approach to knowledge. But these alternative institutions are unlikely to affect the actual curriculums of accredited law school. Moreover, many conservative donors have halted donations to universities--especially in the wake of October 7.

And to be fair, there are costs to these approaches. If a legislature, or donor, withholds money from a law school, that will have a negative impact on many innocent actors. Law students have little control over what is taught, yet they will likely feel the brunt of any cut in funding. Even originalist professors, a discrete and insular minority, may feel the burn of reduced funding. Still, Judge Thapar seems to support this divestment from institutions that do not teach originalism.

In addition to divestment, there is another approach to fostering change: boycotts. I speak, of course, about the boycotts promoted by Judges Ho, Branch, and others. These judges have declined to hire law clerks from certain law schools based on their policies concerning free speech and anti-semitism. These boycotts are prospective, and only apply to students who choose to go to a school after the boycott is announced. The boycotts are a far more narrowly tailored approach than divestment. Rather than cutting funding throughout a law school, these judges are only withholding a very specific prestige point: federal clerkships. To be sure, both divestment and boycotts harm innocent people. But I think boycotts are far less harmful than divestment, because of their targeted nature.

During the Q&A session, Judge Thapar was asked about the boycotts by Judges Ho and Branch. Here is his answer, roughly transcribed (42:!5):

Thapar: … I appreciate that that's the tack they've taken and that every judge should choose what tact is best for them. I think for me I think speaking out about it's important putting pressure through donors and taxpayers as I mentioned I think is critical the reason is is I don't think as much as you know we may think.

I don't think kids in the military that are going to law school right now are paying attention to what Amul Thapar is saying or any of my colleagues. I think they have much bigger things to worry about about and I don't know that those students should be excluded.

I worry that there's kids like myself that went to law school. I didn't even know what a clerkship was. I'm still the only person in my extended family that went to law school I had no guidance. And I just showed up.  I wasn't even a conservative then. I was a nothing right. I was a normal college kid that enjoyed College, played Sports, had fun, probably drank a little too much, and and went to law school.

And I got there and I thought I was going to be interpreting text interpreting law that's just kind of logically, if you have no idea you think that's what you're going to do and then you get there. And it's craziness and a lot of those kids I think either quietly or vocally moved to the right during law school.

And so I struggle with excluding a whole group of essentially students that believe in originalism or want to do originalism to punish their law school now. I'm not saying it might not be effective. I'm not saying the Jim [Ho] and Lisa [Branch] haven't made great strides. I'm saying it's just not the tact I and others have taken because we want to encourage the schools to change we're very vocal about it at the same time we don't want to punish the very students that uh believe in originalism as a result.

Thankfully, as Hamilton explained, judges do not have the power of the purse, so they have no power over the budgets of the states. But judges do have authority over who they hire. Both divestment and boycott will hurt innocent bystanders. If Judge Ho refuses to hire originalist students at Yale, a small number of those elite students will lose a particular line on their sterling resumes. If the Kentucky legislature defunds the University of Kentucky Law School for not hiring originalists, all originalist students at Kentucky would suffer. At this point, then, the only question is about which means you prefer.

Comments

[Bob from Ohio]

"Boycott Law Clerks Or Divest Funding?"

Yes

[Stepped Reckoner]

Yeah, I suspect that if you asked Judges Ho or Branch they’d probably say, “Embrace the healing power of ‘and’.”

[MatthewSlyfield]

All of the above.

[Malika the Maiz]

We’re all cancel culturalists now!

[Ed Grinberg]

Fully addressed a year ago:
https://reason.com/volokh/2023/11/03/nate-silvers-free-speech-is-in-trouble/?comments=true#comment-10303111

[SRG2]

"That settles it. I'm going to South Texas College of Law, not Yale Law", said no-one ever.

[Please, Daivd, Seek Help]

> The theme of his lecture is that originalists courts need originalist classrooms. I couldn't agree more. At most law schools, originalism is taught, if at all, as something of a strawman. Professors will introduce it, briefly, and then spend the bulk of time explaining why the doctrine is incoherent. I can count on two hands the number of originalist constitutional law professors in the United States.

Wow it's amazing that originalism is so persuasive that despite not being taught in schools and despite no professors believing it, half of all federal judges end up embracing it and it's the dominant paradigm of the current Supreme Court's jurisprudence. Really remarkable. A true win in the marketplace of ideas.

[Randal]

I like how you guys have just given up on convincing people you're right.

[bernard11]

By all means let's let donors and politicians (What you really mean by "taxpayers") dictate the curriculum.

Big business doesn't like torts, or environmental law? Drop them. Politicians want to look tough on crime? A few changes to the law curriculum will lead to fewer of those pesky defense lawyers.

Insanity. I want engineers designing the bridges, not the governor.

[mike petrik]

So, I guess you want public policy experts making laws, not representatives elected by citizens.

[Don Nico]

" I want engineers designing the bridges, not the governor."
Exactly!

[Lee Moore]

I want engineers designing the bridges, not the governor.

Yes, but no. Engineering is not physics. There isn’t a correct answer.
The person who commissions the bridge will have certain requirements and preferences that the engineer has to juggle and balance. These may include – how wide, how high, how long is it going to last, maintenance costs and maintenance downtime, aesthetics, cost, environmental considerations, built only with Native American labor, and so on. These specifications and preferences are not the province of the engineer but of the commissioner. The engineer has the task of delivering the commission, after giving due advice on the trade offs required.

When it comes to law schools, if they are wholly private affairs, then the government is not the commissioner, the owners or trustees are. Not the faculty members. The faculty can certainly advise that the trustees desire for a mechanical engineering course with three spoonfuls of critical race theory is a batshit crazy idea that could only deliver critical race theory with three spoonfuls of mechanical engineering.

Or – the faculty might try stirring in three spoonfuls of critical race theory into a mechanical engineering course, and the trustees might say – sorry those spoonfuls are not what we ordered. Stick to mechanical engineering, or vamoose.

But as I note below, as I understand it, in most states the law schools are not – even if they are ostensibly private – wholly private. The bar exam is restricted to entrants who have qualified at ABA accredited law schools. Law schools and the ABA form part of the government licensing system.

The government, which has thereby become one of the commissioners, is perfectly entitled to intervene so as to eliminate this absurd requirement. Alternatively it might intervene to say that no one can take the state bar exam unless they have graduated from a law school that teaches originalism in its con law course. This is certainly no more absurd than requiring ABA accreditation.

[Lee Moore]

I should have made it clear that while there isn’t a correct answer, there are lots of incorrect ones - those that fail to deliver the specifications.

[Dr. Ed 2]

Lee, you are missing the impact of (a) the ABA and (b) its accreditation being necessary for the bar exam.

How are *all* law schools not agents of the state?

[JasonT20]

Yes, but no. Engineering is not physics. There isn’t a correct answer.

True, but engineering uses and is constrained by physics. Besides, physics is not so simple and straightforward as you seem to think. The basic ideas in the theories and laws of physics are simply expressed for simple phenomena, but physicists don't stop there. The real testing of the understanding of physics comes when experimentalists try and find out what happens in the more complex scenarios and whether that matches what the theories predict. High school and introductory college physics may have a lot of problems with frictionless surfaces, no air resistance, massless pulleys, and so on. But that is only because you don't start teaching someone using the full complexity of reality. You have to build an understanding of the basics and how it applies to simple situations before you can understand things more deeply.

Alternatively it might intervene to say that no one can take the state bar exam unless they have graduated from a law school that teaches originalism in its con law course. This is certainly no more absurd than requiring ABA accreditation.

They could also require that science teachers (licensed by the state), be taught creationism in college before they can take the state exams for obtaining a teaching credential if they want. (Well, if there are enough originalist judges that wouldn't strike down that requirement on Establishment Clause grounds, they could.) They might find that they would have trouble recruiting competent science teachers if they did that, though. That is what happens when start off by limiting your talent pool to religious fundamentalists. I'd expect the same thing if they limit law students to those that want to be taught originalism as the one true method of constitutional interpretation.

[Lee Moore]

The distinction, of course, is that there is an impartial judge of science – reality. If your scientific theory, or what you teach in school, is contradicted by reality, you’re wrong. Your bridge will fall down.

Whereas the law is judged by judges, not by reality. If roughly half of them, and a majority of the ones on the top court hold, and apply, a jurisprudential theory based on interpreting animal entrails, if you do not teach your students about interpreting animal entrails in accordance with the norms settled upon by those senior judges, you are going to produce a lot of bad lawyers. By which I mean lawyers who are unable to predict the actions of the courts.

[JasonT20]

But what if you think that judging based on interpreting animal entrails is bad law and leads to poor decisions? In that case, you might want to teach law students how these bad judges are arriving at their poor decisions, but being careful to explain the shortcomings and irrational thinking involved. Think about Josh's complaint here:

At most law schools, originalism is taught, if at all, as something of a strawman. Professors will introduce it, briefly, and then spend the bulk of time explaining why the doctrine is incoherent.

This is what I'm getting at. If originalism stands on its own as a coherent, valid, and rational theory of interpretation, then there should be no need for the state to mandate anything. There will be lawyers persuaded by it and that want to become law professors to teach it to law students. There will be existing law professors persuaded by it that will teach it their law students. This can happen independent of law professors preferences even, as law school courses will have to deal with originalist opinions written by judges and at the Supreme Court level and discuss them. At least, if they want to remain their reputations for providing a useful legal education, law schools will foster those discussions.

Blackman, and perhaps you, seem to be working under a presumption that originalism is being suppressed in academic legal circles, and that is why there are so few originalist law professors. I offer the alternative explanation that it just isn't intellectually rigorous enough to persuade law professors that it is valid.

[Lee Moore]

And the alternative to your alternative is that law schools are dominated by irrational animal entrail folk*, who are terrified of the rationality of originalism, and therefore suppress it as best they can.

* aka those who assert that they can divine unspoken "purpose" from the penumbra. Originalism does at least have the advantage, rationaliy-wise, of starting with actual words on actual paper.

PS My beef,for the avoidance of doubt, is the making of acreditation of the law schools by the Society of Animal Entrailers part of the licensing system of the state bar. Without that, I'm quite happy for law schools to teach whatever they like. Not excluding trial by ordeal.

[JasonT20]

And the alternative to your alternative is that law schools are dominated by irrational animal entrail folk*, who are terrified of the rationality of originalism, and therefore suppress it as best they can.

That's not an alternative to my alternative. It is the same reasoning that I thought you were using.

PS My beef,for the avoidance of doubt, is the making of acreditation of the law schools by the Society of Animal Entrailers part of the licensing system of the state bar. Without that, I’m quite happy for law schools to teach whatever they like. Not excluding trial by ordeal.

You have some other idea of who should perform the accreditation of a law school other than an association of practicing lawyers? Or is your idea to not have any accreditation at all? And what is with the crack about trial by ordeal? Trial by combat not barbaric enough?

[Lee Moore]

Law schools operating in a free market can be “accredited” by whoever wants to try “accrediting” them. Likewise philosophy schools, math schools, pastry chef schools and critical race theory schools.

But as regards the government licensing of who is allowed to practce law, the “accreditation” should be by the government. I’m not for licensing by guilds or special interest groups.

“People of the same trade seldom meet together, even for merriment and diversion, but the conversation ends in a conspiracy against the public, or in some contrivance to raise prices.”

The bar exam is enough. Whether you can pass it by going to Harvard or by studying at home after your shift at McDonalds shouldn’t matter at all.

[SRG2]

I want engineers designing the bridges, not the governor.

You must be some kinda lib'rul yankee elitist sumbitch

[Drewski]

What happened to the free market of ideas? If prospective lawyers believe they're better-served by a school that focuses more on originalism, they can certainly find one. The idea that the government should intervene to make top schools less competitive against those that focus on originalism is not conservative, libertarian, or liberal. It's kakistocracy.

[CommentMonkey]

Law schools are not exactly a shining example of the "free market of ideas." Its labor force consists primarily of long-tenured professors, many of whom never practiced as lawyers. They are virtually immune from market forces due to tenure protection. They hold their positions well past the normal retirement age and when they finally leave, they control the selection of new faculty. As a result, ideological biases are baked in. The refusal to provide competent instruction on originalism, despite its status as the dominant mode of interpretation on the Supreme Court and throughout appellate courts, is merely one symptom of this problem.

True, someone could start a new law school from scratch and try to compete by offering a less ideologically-blinkered curriculum. But it would take decades for such an institution to gain its footing given all the institutional advantages incumbent schools have. Among those advantages: law school consumers are looking at a three-year window. Most want to obtain a degree that will carry as much prestige as possible in the job market three years after enrollment. It is unrealistic to expect many such consumers to choose a brand new law school. So the refusal of most constitutional law professors to offer competent and fair-minded instruction on originalism is not because the free market of ideas prevailed and originalism lost.

Contra Blackman, I don't think the solution to this problem is for schools to be bullied by politicians into "hiring originalists." I think the solution is for existing faculty members to do their damn jobs. In the context of constitutional law, that means teaching students how to view the material through an originalist lens (among other perspectives). This is something the legal profession should be demanding.

[Lee Moore]

Also IIRC I read somewhere that in all but 4 states you can’t take the bar exam unless you’ve been to an ABA accredited law school. If true there’s an easy fix in 20 or so states that have GOP governments.

If 46 states require ABA accreditation it’s hardly surprising if law schools are trending nutso.

[Tallman]

+1. Break the monopoly and admit *anyone* who passed the bar, including both non-ABA-accredited law schools and people who merely "read" for the law. It's kind of amazing that CA, of all states, leads here.

That said, the current bar exam is a joke. We'll also need to make it more rigorous.

[Commenter_XY]

Can a layman really walk off the street, take the bar exam and pass it, and hang up a shingle?

Is that really legal?

[Dr. Ed 2]

The ABA was created over a century ago to prevent this -- so that lawyers could make more money.

[bernard11]

I don't know about the legalities, but the rest doesn't seem all that implausible, given adequate study.

As a non-lawyer, I'm far from convinced that the law is some deep, complex, field of study that can only be mastered by three years of intense training by its masters.

[Dr. Ed 2]

Are you sure it is even four?

And yes, this is the problem...

[Sarcastr0]

I’m all for expanding the options. But it is notable that the impact sure seems marginal.

[Lee Moore]

Perhaps you might be able to perceive a more than marginal impact if 46 states required AFA* rather than ABA accreditation for their law schools.

*American Family Association

[loki13]

"The refusal to provide competent instruction on originalism, despite its status as the dominant mode of interpretation on the Supreme Court and throughout appellate courts, is merely one symptom of this problem."

I disagree with this. First, not all Law Schools are the same (obviously). Second, as pointed out in the second quote, a LOT of law students actually move to the right during law school..

In addition, law schools usually have chapters of the Federalist Society, etc.

Finally, the vast majority of course aren't ConLaw! Even if you were to accept the originalism must be taught ... what? Not sure any one cares about your originalism when they are dealing with trusts and estates.

And I have yet to meet a law student who didn't understand originalism from their classes and instruction. This is just a truly bizarre issue. Like a lot that I have seen, it is divorced from actual reality.

[CommentMonkey]

Sure, there's no need for an originalism block in trusts and estates or any number of other classes. But it ought to be part of the conlaw curriculum. It's great that Federalist Society chapters offer some ideological diversity on law school campuses, but I don't think they can be counted on to provide instruction.

As for your observation that the law students with whom you have interacted understand originalism, the basis for this post was a pretty thorough and convincing (to me) speech by a prominent appellate judge arguing that he regularly sees advocates who don't have a fundamental understanding of originalism or the ability to craft arguments to appeal to originalist judges. Maybe he's exaggerating the problem, but he seems pretty well positioned to assess it.

[SimonP]

Why should "originalism" be part of any ConLaw curriculum, given that virtually none of our constitutional law is meaningfully "originalist"?

As for your observation that the law students with whom you have interacted understand originalism, the basis for this post was a pretty thorough and convincing (to me) speech by a prominent appellate judge arguing that he regularly sees advocates who don’t have a fundamental understanding of originalism or the ability to craft arguments to appeal to originalist judges.

The vast majority of lawyers are never finding themselves in this scenario.

And those few who do - there is only one court in the entire nation where crafting arguments on originalist terms is legitimate. Every other court is bound by controlling precedent. In those courts, the advocate's task is to make arguments based on the law as it is, and if the relevant case law is not meaningfully "originalist," then there is no legitimate basis for debating an underlying text on originalist grounds. It has been construed.

There is no reason whatsoever for a Fifth Circuit panel, say, to re-ask the question, "What privacy rights properly still exist, after Dobbs, on originalist grounds?", or to invoke originalist arguments so that they can slice controlling Supreme Court precedent narrowly, pretending that holdings on the protections of trans people under Title VII don't apply under similar provisions of other civil rights laws, or that holdings acknowledging a right to same-sex sexual intimacy and marriage stop short of a right to adopt or obtain IVF services.

To be sure, an increasing number of appellate judges (and district court judges!) are taking it upon themselves to stake out new positions, act the professor in their court room, and ignore precedent. But this is not something that law schools must acknowledge is a legitimate development by training their students to argue in this new, shifting environment.

[Tallman]

OTOH, originalism is more-or-less the rule everywhere except ConLaw.

[SimonP]

Nope.

[loki13]

Again, the idea that some attorneys are poor advocates is hardly shocking. But color me skeptical that Judge Ho has determined that law schools don't mention originalism.

The vast majority of attorneys will never be arguing an originalist argument over the Constitution. Period. And it is taught in law schools. This is beyond silly.

Just because a lot of attorneys can't do textualism (canons, etc.) doesn't mean that law schools don't hit it- it just means that there are a lot of bad attorneys.

[Flight-ER-Doc]

Why not both?

[Scribe]

Indeed.
Miller Lite perfected that 30+ years ago. https://www.youtube.com/watch?v=Gu5iLZC6vI0

[Bobby]

Obviously, no one's alive who voted to ratify the constitution, but, hey, let's let their interpretation of the constitution trump our own.

[Sarcastr0]

Let’s let our interpretation of their interpretation trump our own.

[Alpheus W Drinkwater]

There are as many versions of "their interpretation" as there are people who were alive in 1789. That allows ideologues to pick and choose among the various "their interpretations" to arrive at whatever result suits their ideological preference. That's how Originalism works.

[Sarcastr0]

I sometimes find it surprising Blackman has been to law school, much less that he teaches at one.

I didn’t learn originalism until I took jurisprudence - an elective. And a lot more when I took a Supreme Court seminar.
The rest was largely about understanding the precise trial lay of the land. Those lawyers, always citing case law!

One wonders how much precedent his classes get through.

[Dr. Ed 2]

"If the Kentucky legislature defunds the University of Kentucky Law School for not hiring originalists, all originalist students at Kentucky would suffer. At this point, then, the only question is about which means you prefer."

No -- not if then eliminates the JD as a prerequisite to take the KY bar exam. Even better, put a bunch of origionalist questions on the KY bar exam.

[Lee Stillman]

Women, children, and all three originalist law students at Yale most hurt.

[killcreekroad]

This article opens, "I was honored..." and includes "The Heritage Foundation" before that period arrives concluding sentence one, and the originalist babble follows. I thought Reason was for conservatives and free thinkers, not fascists. I must have the wrong publication.

[bernard11]

Excellent point. For all its "think tank" aspirations Heritage is little more than an arm of the RNC.

[Alpheus W Drinkwater]

It's hard to imagine terms with less meaning than "Originalist Judges" or "Originalist Students." Or more accurately, they are terms that are so open to interpretation and ideological abuse to be functionally meaningless.