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Bar News - April 19, 2013

Opinion: UNH Law Alum Reacts to Justice Scalia’s Remarks


Hon. Antonin Scalia
Those expecting a barn-burner of a speech from Justice Antonin Scalia were likely disappointed. Rather, his speech to the annual UNH Law Alumni Dinner on March 22 focused on the state of legal education. He made several points, most notably that law schools today are fixated on offering what he called "law and…" courses which try to connect the law to other disciplines (for example, "law and literature" or "law and psychology").

The introduction of these "tangential" courses, he offered, has started to come at the expense of more foundational offerings, such as bankruptcy and secured transactions. Rather than focusing on interdisciplinary coursework, law schools, in his view, should get "back to the basics."

He was similarly critical of the practice of law professors being evaluated primarily on their contribution to academic scholarship via law review articles (the nature of which he derided as being "abstruse and esoteric"). This, he argued, has led to a situation where law schools are increasingly divorced from the realities of the practice of law and where law graduates are unprepared for the practice of law. Justice Scalia was also critical of law professors’ fixation with the common law, arguing that it gets too much attention, given that most lawsuits today deal primarily with textual interpretation, be it of a constitution, a law, a rule, or an ordinance.

My personal reaction to his speech was mixed. On the one hand, I found it a little off-putting that he did not seem to recognize that he was speaking to alums of a law school, which has innovated in certain ways with its approach to legal education. UNH Law has set a national model with its Daniel Webster Scholars Program, and its externship program and clinical programs afford students the chance to actually engage with clients and get some "hands-on" experience with the practice of law, before they even graduate or take the bar exam. Further, UNH Law’s Public Interest Law Fellowship program (in which I have been fortunate enough to participate) is an invaluable opportunity for recent graduates to gain experience as newly minted members of the New Hampshire bar.

That said, as a general matter, I agreed with his overall critique that legal education does need to put more of an emphasis on training law students to be lawyers. One of the most common critiques of new lawyers is that we require remedial training during our first few months in practice. An argument could be made that the third year of law school should be geared more toward preparing law students to enter the field. Similarly, his critique of the so-called "law and…" classes has some truth to it. Focusing on interdisciplinary courses at the expense of offering doctrinal courses such as bankruptcy, secured transactions or business organizations, undermines the ability of a law student to get a full legal education.

Law school is the only place where once can fully learn the basics of an entire area of law, and the course selections law schools offer should better reflect this fact. Lastly, on the subject of law professors, Justice Scalia raised a valid point: As law schools increasingly become extensions of universities, they ought to resist the pressure to hire more "scholarly" professors at the expense of ones who have extensive experience as practicing attorneys or judges, but whose names appear in few bylines.

As far as the tenor of his speech itself goes, it would have been nice to hear more from him from his perspective as a sitting associate justice of the Supreme Court. The speech he gave did not contain much in terms of personal observations or insights from the bench. He was speaking to a room full of judges and attorneys – a crowd that would have greatly appreciated any such personal insights. Nevertheless, although he did not offer more in that regard, I know that his mere presence provided many in attendance with a unique opportunity, and one which UNH Law certainly should feel proud of having arranged.

Richard Fogal

Richard Fogal is a 2012 graduate of UNH School of Law and a class of 2012 UNH School of Law Public Interest Law Fellow.

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