September 14, 2005
A Little Legal History
Posted by Mike Madison

Following my account of the Prawsblawg dialogue on the role of Ph.D.'s in interdisciplinary scholarship, a colleague of mine, far wiser than I, pointed me to Thomas F. Bergin, The Law Teacher: A Man Divided Against Himself, 54 Va. L. Rev. 637 (1968).  The law teaching profession has trod this ground before, and long ago.

Professor Bergin wrote:

By compelling true academics, or those who have the potential for serious scholarship, to play out a Hessian-trainer role, and by compelling highly skilled Hessian-trainers to make believe they are legal scholars, the disease dilutes both scholarship and Hessian training to the advantages of neither. That this compulsion (I am using the word in as many senses as I lawfully may) exists in today’s law schools seems to me plain upon inspection; for there is no fact more visible in our law schools than that teachers with extraordinary scholarly skills are being made to "pay for their keep" by rule preaching and case parsing. The time they must give over to preparation for the Hessian-trainer roles makes it literally impossible to produce serious works of scholarship. (at 645)

Bergin's conclusion was that law school education itself could be bifurcated, into what might be called academic and practitioner (Bergin called it "Hessian-trainer") tracks.  The former would more closely resemble doctoral training in other disciplines and would be the source of the future law professoriate.  Kate Litvak echoes his argument in part (Bergin supposes that faculty themselves would find it worth investing in their own doctoral training), and I have to say that I find it intriguing.

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Comments (4)

1. Posted by Gordon Smith on September 14, 2005 @ 16:57 | Permalink


It's not clear to me why we should limit our training to Hessians. ;-)

So, would Bergin recognize the (partial) fulfillment of his wish in the expansion of clinics, on the one hand, and increased PhD hiring, on the other?

2. Posted by Mike Madison on September 14, 2005 @ 17:20 | Permalink

I think that he would appreciate increased PhD hiring but be disappointed to find those PhDs engaged in "Hessian-training."

3. Posted by Scott Moss on September 15, 2005 @ 9:07 | Permalink

A view I tentatively hold (i.e., I haven't rigorously thought it out because it ain't on the horizon) is that legal education could be two years, with a 3rd year serving as an optional LLM with a wide range of "majors." The majors could include: "legal theory" or "economic analysis of law" for aspiring profs; a field of practice like tax law, corporate law, or employment law; or it could be a skills-based curriculum like "trial advocacy" or "community legal services."

Much of this isn't all that original: plenty of folks have advocated 2-year JDs; and some such LLM programs already exist (though no schools really have several offerings, I think).

I think my suggestion would serve a few ends: (1) allow students to "brand" themsevles (sorry if I'm using the term sloppily, Vic!); (2) allow students to get out after two years if they do well and can get good jobs; (3) allow schools to brand themselves based on their LLM offerings (which some schools do now, to a lesser degree, with "centers" and "programs"); and (4) allow firms, in hiring, a range of options, from the 2-yr JD who was on law review to LLMs with lesser grades but more of a relevant specialized background.

4. Posted by Stephen M (Ethesis) on September 17, 2005 @ 23:21 | Permalink

play out a Hessian-trainer role, and by compelling highly skilled Hessian-trainers

You've got to define this term to make your comment make more sense.

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