Legal Commentary

Jason's posts, however many qualms I may have about them, continue to be thought-provoking, and his latest post , about BYU Law School, is no exception.  What has me thinking this time is the anonymous commenter who notes the "religious homogeneity" of BYU, which I am assuming is accurate, and adds, "I guess there should be places for people who are really into religious homogeneity. That homogeneity, which I admit to finding a little creepy, very likely explains a lot of the satisfaction-based results reported above. I'm sure Regent Law students are also highly satisfied with their educations - it's the rest of us who are not. That said, BYU is a rigorous school that has quality students and faculty, no doubt. It just may not be a great model for anyone else."  And a second anonymous commenter, or perhaps the same one, adds that it may be that "there's not much we can learn [from a religious law school like BYU] about educating diverse student bodies at mainstream law schools."

I have always assumed -- and commenters are free to disagree with me on this -- that religious law schools, while they may get a bump up in the US News rankings due to the kinds of self-selection and satisfaction effects discussed by the commenter(s), also face a ceiling in the rankings: without the ability to attract a broader set of constituents, they can only rise so far.  In my view, there are at least a few under-ranked religious law schools, although conversely I think that many religious law schools are better at achieving some brand distinction and serious loyalty than are many of their peer schools.

But my own experience from visiting at one genuinely religious law school, and from some visits to a couple of others, is that these can be incredibly strong academic institutions, precisely because they share such a strong common mission.  The school I visited at had a deep commitment to the mission of the law school, saw that mission as both intellectual and practical (especially to the extent that it involved offering genuine help to others), and had a strong sense of professional and general ethics that suffused every class and every discussion.  That mission was shared by both faculty and students, so the sense of connection between and among the entire community was palpable.  Not every student or faculty member shared the same religious faith -- I did not -- but the sense of allegiance to an underlying worldview concerned with ultimate ends, or at least to the possibility and value of such a worldview, was widely shared by people within and outside the faith.

That experience, combined with Jason's posts, leads me to ask, somewhat for purposes of provocation but also with a geninue question behind it, whether we are again mistaken to be looking at the usual "super-elite" schools in thinking about what makes for a great law school.  Perhaps we should be looking specifically at the religiously affiliated schools -- and perhaps we might ask, is a great legal education possible  outside the religiously affiliated law schools?

One answer to this question might be the old answer to the question whether you believe in infant baptism: "Believe in it?  Hell, I've seen it!"  But I do mean to suggest that one of the great and perhaps underlooked qualities of the religiously affiliated law schools is a profound sense of shared mission that unifies faculty and students alike.  That common cause can, in the best instances, be deeply tied to a questing intellect and a sense of underlying values, and can thus provide the kind of mystical marriage between practical skills, ethical values, and intellectual rigor that we keep hoping for in the best of our law schools.  And none of it need be the kind of warmed-over bien-pensant liberalism that I see, somewhat over-simplistically, as the result of the usual attempts to mix values and intellect at the top secular law schools. 

Again, I don't want to overstate things.  I had a great legal education at two secular law schools; I don't think there was much of a common mission at either place, but that can also be a virtue.  Of course, too, there are mediocre religious institutions.  And, in any event, I believe very strongly that one need not have any single picture of what a university or law school is supposed to believe or do.  But I do mean to suggest that a great religious law school brings particular qualities to the table that should very much inform our picture of what it means to be a "great" or "elite" institution -- and that it might not be so easy for secular law schools to reproduce those qualities.