the road not taken: catholic Legal Education at the Middle of the twentieth century by Jrohn by M. oBErt JarvIS BrEEn * LEE J. IntroductIon One would expect that law schools identifying themselves as “Catholic” would evince a Catholic mission. Of the 199 American Bar Association-approved law schools in existence today,1 twenty- nine operate under Catholic auspices.2 Catholic law schools enroll 23,231 full-time equivalent J.
law students, a figure that repre- sents 17 percent of all full-time equivalent J. law students enrolled in ABA-accredited schools. with numbers like these, one would ex- pect to find that Catholic law schools, as such, are a vibrant part of American legal education. * Professor of Law, Loyola University Chicago School of Law; B.
1985, Univer- sity of Notre Dame; J. I wish to thank Mary Katharine Ludwig, Loyola Class of 2011, for her excellent research assistance. I also wish to thank my wife, Susan Nelligan Breen, and our sons Peter and Philip for their love, encouragement, and patience along the long road traveled to the completion of this Article. ** Professor of Law, University of Toledo College of Law; B.
1997, Loras Col- lege; J. 2001, University of Iowa; LL. I wish to thank Elizabeth for her love and support. I would also like to gratefully acknowledge the research support for this Article provided by the University of Toledo College of Law.
The authors wish to thank the participants at the University of Detroit Mercy School of Law workshop, the Duquesne University School of Law workshop, the St. Mary’s University School of Law workshop, and the participants at the Joseph T. McCullen Symposium on Catholic Social Thought and Law at Villanova University School of Law, for their comments and suggestions. 1 ABA-LSAC OffICIAL GUIDE TO ABA-APPrOVED LAw SCHOOLS 2011 (2010).
2 The names of these schools are listed in an appendix to this article, together with the year in which each school was founded, when it was approved by the American Bar Association (ABA), the year it was accredited by the Association of American Law Schools (AALS), the year in which it received the Order of the Coif, and the year in which it first published a student-edited law review. 554 aMErIcan JournaL oF LEgaL hIStorY vol. 51 All law schools, of course, share a common mission in that they are all centers of professional training. regardless of whether a school is sponsored by the state or by a private institution, whether it sees itself as a place devoted to scholarly research or oriented toward the day-to-day concerns of practicing lawyers, on a funda- mental level every American law school is dedicated to teaching the basic skills of legal analysis and argument, and the basic contours of legal doctrine, while introducing students to the core values of the legal profession.3 There are, however, a number of routes that a law school can fol- low in reaching this common destination.
One would expect to find schools overtly identifying themselves as “Catholic” to follow a dis- tinctive path. By drawing upon the riches of the Catholic intellectual tradition4—including a two millennia-long reflection on the mean- ing of justice, the nature of law, the interpretation of texts, and the workings of legal institutions—and inspired by a religious tradition that teaches love of neighbor5 and dedication to public service in support of the common good6—within the parameters common to all law schools, one would expect to find Catholic law schools mark- ing their own path. what one finds instead is that Catholic schools are followers of a large and overwhelmingly homogenous pack of institutions—a group that seldom strays from the course set by those law schools considered to be among the elite.7 Moreover, in walking this well- 3 American Bar Association, Standards and Rules of Procedure for Approval of Law Schools §302 (2010-2011)., ALASDAIr MACINTyrE, GOD, PHILOSOPHy, UNIVErSITIES: A SELECTIVE HISTOry Of THE CATHOLIC PHILOSOPHICAL TrADITION (2009) (providing an overview of the Catholic intellectual tradition). 5 See 1 John 4:21 (“for this commandment we have from God, that he, who loveth God, love also his brother.”); II-II ST.
THOMAS AqUINAS, SUMMA THEOLOGICA, q. 1 (English Dominican trans., 1946) (“[T]he habit of charity extends. to the love of our neighbor. THOMAS, supra note 5, at II-II, q.
7 The Harvard Law School has served as the dominant model for law school edu- cation since the latter half of the nineteenth century. This model included stan- dards regarding the length of law school, requirements for admission, innovations concerning curriculum and pedagogy, and expectations concerning the teaching and scholarly abilities of faculty., rOBErT STEVENS, LAw SCHOOL: LEGAL EDUCATION IN AMErICA frOM THE 1850S TO THE 1980S 39 (1983) (“Harvard had taken the lead in 2011 thE road not taKEn: cathoLIc LEgaL EducatIon 555 at thE MIddLE oF thE tWEntIEth cEnturY trod path, virtually all of the law schools operating under Catholic auspices have allowed their Catholic identity to languish as a near- forgotten historical artifact. Like most Catholic colleges and univer- sities,8 Catholic law schools have devoted their energies to mimicking their secular peers—in the courses and programs they offer, the stu- dents they seek to attract, and the faculty they hire. The vestiges of Catholic identity that do remain are largely symbolic or ornamental in nature—the celebration of a red Mass to begin the academic year, or the well-placed portrait of St.
Thomas More in the school library. Almost without exception, however, the intellectual life of these institutions—the questions raised and the lines of inquiry pur- sued by faculty and students alike—is indistinguishable from that of their secular peers.9 This need not have been the case. A forgotten episode from the history of American legal education shows that Catholic law schools could have traveled down a very different road—a road that, had it been followed, could have profoundly changed the face of legal education, and with it the legal profession. In the late-1930s and early-1940s, a number of Catholic law pro- fessors concluded that Catholic law schools had not fully realized their potential.
The kind of education provided by these schools was, in all material respects, the same as that offered at non-Catholic law schools. while attaining the same level of achievement of other schools certainly represented a positive accomplishment, this “same- ness” also constituted a failure. To remedy this failure, these reform- minded scholars proposed that Catholic legal educators “develop a distinctively Catholic law school.”10 By drawing on the patrimony of the creation of a new method of teaching, the new structural standards, and the new type of educator thought to be needed in American legal education. The size and influence of Harvard was such that almost all university affiliated schools were only too anxious to emulate its developments.
8 See generally, JAMES TUNSTEAD BUrTCHAELL, THE DyING Of THE LIGHT: THE DISENGAGEMENT Of COLLEGES AND UNIVErSITIES frOM THEIr CHrISTIAN CHUrCHES 557-716 (1998) (discussing the loss of Catholic identity at three representative Catholic colleges). Breen, The Air in the Balloon: Further Notes on Catholic and Jesuit Identity in Legal Education, 43 GONz. 41, 43 (2008) (“[I]t is entirely pos- sible for a student to graduate from one of these institutions without ever having been asked to think seriously and rigorously about the nature of justice and its meaning in law. 10 James Thomas Connor, Some Catholic Law School Objectives, 36 CATH.
556 aMErIcan JournaL oF LEgaL hIStorY vol. 51 Catholic legal and philosophical thought, and riding the crest of the Neo-Thomistic revival, the proponents of this call for reform be- lieved that such a law school could challenge the novel legal and philosophical ideas then gaining adherents in the legal academy,11 while charting a “desirable future of the common law”12 and exert- ing a “potent influence upon legal thought” in the minds of lawyers and judges.13 The impetus for this proposal was a clear-eyed recognition of the conceptual and real-world threat posed by the rise of totalitarian- ism, as well as the challenge to traditional understandings of law being made by the newer schools of jurisprudence. A number of Catholic legal scholars saw contemporary legal movements, such as Legal realism, as symptomatic of a deep intellectual malaise in western thought. In response to this challenge, they sought to build Catholic legal education around a rigorous study and exposition of the metaphysics and natural law theory of St.
In the Article that follows, we describe the events that precipi- tated the call for the establishment of a distinctively Catholic form of legal education, the tepid reception given to this proposal, and its eventual, de facto rejection by law schools affiliated with Catholic universities. In Part II, we describe the founding of four representa- tive Catholic law schools and the characteristics that defined Catholic legal education up through the 1950s.14 we conclude that the pre- cipitating purposes of Catholic law schools included a desire to pro- vide local Catholic populations with the opportunity for advancement into a respected profession and entry into the middle class, while raising the standing of the host university in the academic commu- nity and creating a source of additional revenue. Brown, Jurisprudential Aims of Church Law Schools in the United States, A Survey, 13 NOTrE DAME LAw. Clarke, The Catholicity of the Law School: Catholicity in Legal Train- ing Simply and Forcefully Discussed, 6 J.
14 whereas twenty-nine law schools today operate under Catholic auspices, twenty such schools were in operation at the time of the proposal in the late 1930s and early 1940s. Given the large number of Catholic law schools, a comprehensive study of the subject is not feasible in the format of a law review article. we hope to provide such a complete study in a future book. 2011 thE road not taKEn: cathoLIc LEgaL EducatIon 557 at thE MIddLE oF thE tWEntIEth cEnturY In Part III, we set forth in detail the proposal that Catholic law schools distinguish themselves from their secular counterparts via a thorough-going reform of the curriculum and increased scholar- ship centered on the study of Neo-Thomistic philosophy.
Although the proponents of this reform included a number of prominent fig- ures in the world of Catholic legal education, the proposal failed to gain acceptance—even at the schools headed by deans who cham- pioned its adoption. As we make clear, however, the proposal did manage to enjoy some modest institutional success in the estab- lishment of several journals and an academic institute. Aside from these few remnants, nothing today remains of this proposal for the reform of Catholic legal education. In Part IV we explore the reasons that together account for this failure.
Briefly put, we argue that the ultimate rejection of the pro- posal was closely related to the fact that the reasons behind the establishment of Catholic law schools were practical and not juris- prudential in nature. first, Catholic law schools were founded to enhance the academic reputation of their host universities and to serve the professional ambitions of their natural constituencies. financial and market- driven considerations were responsible for the creation of these institutions and not a special sense of mission. The proposal for reform thus represented something new.
Second, because the proposal was something new, Catholic law schools encountered numerous practical obstacles to realizing a distinctively Catholic approach to legal education. Most promi- nently, institutional inertia and the difficult task of identifying and hiring faculty qualified to carry out the proposal impeded the effort to augment Catholic identity. Third, the proponents of reform failed to convince the broader academy and, more importantly, the faculties at Catholic law schools, that their proposal was philosophical and jurisprudential— not theological and religious—in nature. fourth, at the time the proposal was made, Catholic law schools had a strong incentive to conform to the practices of their secular peers.
That is, the goal of first acquiring and then maintaining accreditation from professional bodies such as the ABA pressured Catholic law schools not to vary from the acceptable path of legal education then being established.