Why Legal Education Needs Abraham Lincoln

Even though it is the world's envy, America’s higher education system faces a massive crisis of public trust at home. Last summer, Gallup pollsters found that only about a third of Americans have either a “great deal” or “quite a lot of confidence” in the universities. After the recent upheaval sparked by radical student groups on campuses across the country, administrators and faculty seem powerless, if not complicit, in the destruction of their institutions.

Manhattan Institute senior fellow Ilya Shapiro knows this crisis from unfortunate firsthand experience. In his new book Lawless: The Miseducation of America’s Elites, he recounts how a far-left mob and university bureaucrats sympathetic to it used a poorly-worded social media post as a pretext to chase him out of his role as executive director of the Georgetown Law Center for the Constitution. But even beyond his personal experience, the corruption in legal education he unveils in the book should cause all Americans concern.

Americans’ frustration with elite institutions has no doubt been stoked by their capture by “woke” ideology. Although the word “woke” has become something of an overused cliché, it is undeniable that it describes a real phenomenon. Especially since the summer of 2020, ideologues have advanced their agenda by claiming that any opposition is inherently racist, sexist, or otherwise bigoted. They weaponize bureaucracies to push policies of governments, schools, and even businesses as far to the left as possible.

Shifting political winds prove that Americans have had enough of the radical drift – but it is not entirely clear what should be done to stop it. Some recent executive orders have been good steps toward curbing the worst excesses, but clearly this problem goes deeper than a few new regulations can reach. A more general spirit of illiberalism has captured many minds, and it will take immense effort by conservatives throughout the country to persuade institutional leaders to set them back on the road to their original intent.

In Lawless, Shapiro details the ways that this rage of illiberalism undermines not only legal academia but the law more broadly. Early in the book, he points out that law schools train the decision-makers who run corporations, government agencies, congressional committees, and a whole host of other major leadership positions across society. If law schools become seminaries of illiberalism, Shapiro argues, they could corrupt “the gatekeepers to our institutions.”

This argument reminded me of Edmund Burke’s account of Jacobinism’s origins in his Reflections on the Revolution in France. He argued that the revolutionary forces that overturned the monarchy then were a kind of alliance between the “monied interest” of the increasingly wealthy middle class and a “literary cabal” dedicated to radical ideology. “To command [public] opinion,” Burke wrote, “the first step is to establish a dominion over those who direct it.” The partnership of these two classes in France created the perfect conditions for revolution – and conservatives might worry that a similar kind of factionalism is gathering strength in our own time and place.

The trend toward “woke” identity politics has displaced the American left’s historical emphasis on class. Socialists such as Frederik DeBoer may be sympathetic to some of the social justice movement’s goals, but they also feel corporate and middle class interests have coopted the slogans to undermine radical politics. It is difficult to “eat the rich” if corporations sponsor your coalition partners to foster diversity, equity, and inclusion. That means that left-wing politics probably will not endanger the “monied interests,” but anyone who runs afoul of the standards of political correctness becomes an easy victim.

Shapiro’s book is particularly useful in narrating how ideologues established the sort of dominion over opinion Burke attributes to Jacobinism in American education today. He tracks, for instance, the massive administrative bloat happening, especially at elite universities. Rather than spending more money on professors’ salaries or reducing the costs of tuition for students, many schools are throwing countless dollars at rapidly expanding bureaucracies dedicated to promoting “equity” or other ideological golden calves. Shapiro argues that once these bureaucracies weasel onto campus, they seek to gather as much supervisory power over students and faculty members as possible.

But bureaucratic identity politics extend beyond campus – Shapiro also demonstrates how they have infected the American Bar Association. The organization is meant to represent the entire legal profession but is increasingly devoted to left-wing ideas and causes. To advance these radical positions, the ABA often manipulates the standards it sets for legal ethics and professional conduct on the pretext of “eliminating bias in the legal profession.” Shapiro and other critics argue that these rule changes have created a speech code that silences dissenting voices within the legal profession.

If the ABA were simply a dying professional organization, it would be distressing but relatively inconsequential that it is slowly alienating an increasing number of its members. But as Shapiro points out, it wields immense power as the only accreditor of law schools recognized by the federal Department of Education. “The ABA has used its accreditation monopoly to bend law schools to its ideological will,” he writes. If law schools refuse to comply, for instance, with ABA requirements for a certain amount of “bias education,” they will face major consequences.

Something must be done to break the ABA’s power over legal education. In the book, Shapiro recommends that the Department of Education “seek other accreditation options, revoke the ABA’s monopoly, and allow states to choose their own [rating and accrediting] authorities.” In a recent essay at Law & Liberty (of which I am an associate editor), Northwestern University constitutional law professor John McGinnis takes the argument further and proposes an entire deregulatory agenda for legal education, with which I doubt Shapiro would disagree. These steps may seem like strong medicine, but as Shapiro puts it in Lawless, the “diversity-industrial complex” has earned such harsh treatment through its many, many failures and abuses.

Shapiro also rightly recommends several other reforms to tamp back DEI-inspired illiberalism. From ending mandatory diversity trainings to putting a stop to identity-based preferences in hiring and admissions decisions, conservatives should eagerly pursue all of these ideas. At public law schools, state legislatures should step in to achieve these changes. At private schools, courageous administrators, faculty, and board members should attempt to implement as many as possible.

Necessary as these policy changes may be, reading Lawless will also give readers the impression that the legal profession, especially its education system, has a significant character problem. So many of the anecdotes Shapiro deploys come down to failures of nerve on the part of men and women who ought to be leaders and teachers. Illiberal mobs would not be able to bully those who question their identity politics if deans would stand up to them and impose consequences for troublesome conduct.

To be clear, law schools are not in the business of liberal education – or at least they should not be. Rather than investigate the enduring questions of Western civilization or uncover the nature of being, they are designed, quite simply, to train students for the legal profession. Nor are law schools meant to be the source or fount of all justice. They are merely trade schools; they ought to be rigorous, but their concerns should also be limited to the trade they profess. One could even argue that a certain kind of viewpoint neutrality is fitting for law schools that would be unhelpful in other kinds of education.

Nonetheless, any school has certain character-forming responsibilities. The greatest president the United States ever had, Abraham Lincoln, was a lawyer, and his reflections on the kind of character necessary to truly succeed in the profession should serve as a rebuke to the cowardice and mob spirit Shapiro outlines in the book. In a set of notes for a law lecture dated July 1, 1850, he wrote:

There is a vague popular belief that lawyers are necessarily dishonest. I say vague because when we consider to what extent confidence and honors are reposed in and conferred upon lawyers by the people, it appears improbable that their impression of dishonesty is very distinct and vivid. Yet the impression is common, almost universal. Let no young man choosing the law for a calling for a moment yield to the popular belief – resolve to be honest at all events; and if in your own judgment you cannot be an honest lawyer, resolve to be honest without being a lawyer. Choose some other occupation, rather than one in the choosing of which you do, in advance, consent to be a knave.

Lincoln knew that republics are built on the rule of law, and the people lose confidence in the country's very foundations when those who make a profession out of that law show no genuine respect for it. At the end of the day, the bureaucrats and ideologues Ilya Shapiro skewers in Lawless simply do not meet those standards of honesty. If they cannot restore them soon, perhaps the solution is to abandon law schools entirely and revive the kind of education Lincoln himself received: reading law through legal apprenticeships.

Michael Lucchese is the founder of Pipe Creek Consulting, an associate editor of Law & Liberty, and a contributing editor to Providence.