Anthony Bradney, Conversations, Choices and Chances: The Liberal Law School
in the Twenty-First Century (Oxford: Hart, 2003). Pp. xi, 208.
Fiona Cownie, Legal Academics: Culture and Identities (Oxford: Hart, 2004). Pp.
ix, 227.
Law professors typically think that they have the best job in the world. Every law
professor also typically thinks that only he knows what that job is about. The best
job? Why not! Six-figure salaries, approaching $200,000 annually in the richest
schools; six months of the year when it is wise to be seen on the job; a paid leave
every seven years; few assessments of productivity (whatever that is); and almost
complete autonomy: all for thirty to thirty-five years, in a pleasant place to live. Why
not, indeed! Compared to other university professors who lack the high social status
of association with a well-paid profession, whose salaries rarely reach six figures,
whose teaching loads are heavier, whose employment, tenure and promotion
requirements are much more onerous, and whose working environments are
considerably poorer, the lot of the law professor comes close to that of the fabled
leisured classes of old. Bankers, surgeons and judges may earn more, but they have to
sweat a lot more and are subject to greater scrutiny and accountability. The law
professors lot is, indeed, a happy one!
Yet not quite. Too much time, too much money, and too little accountability can
facilitate profound ruminations. These luxuries also lead to lethargy, procrastination,
superfluousness, narcissism, self-importance, petty jealousies, fractiousness over
trivia, and for those aware of these temptations, identity crises. One result of these
symptoms of the easy life is the recent propensity of the legal professoriate to
proclaim its indispensability to society: the law professor knows best what ails the
world and how to fix it (once the curriculum has been fixed in his own image). There
are almost as many views about what law professors are good for as there are law
professors. And a favourite topic for publication among law professors is themselves:
who they are and what they should be doing.1 The literature on this topic is vast and is
itself the topic for self-laudatory study. Two more thoughtful examples of this genre
have recently been published in England by an academic couple: Fiona Cownies
Legal Academics: Cultures and Identities2 and Anthony Bradneys Conversations,
Choices and Chances: The Liberal Law School in the Twenty-First Century.3
Cownies book is about who law professors are, and Bradneys book is about
what law professors ought to be doing. While the focus of both volumes is the English
law professor, their observations are equally appropriate for law professors in the
common law world generally for several reasons. First, both authors rely extensively
1 Two recent examples of this genre are the published symposia: Legal Education, Knowledge and
Access (2001) 20 Windsor Y.B. Access to Just., and The Arthurs Report on Law and Learning / Le
Rapport Arthurs sur le droit et le savoir, 1983-2003 (2003) 18 C.J.L.S.
2 (Oxford: Hart, 2004) [Legal Academics].
3 (Oxford: Hart, 2003) [Conversations].
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on materials drawn from throughout the common law world, where the same kinds of
debates have been carried on over the past generation, and where social and
professional interactionsespecially among English,4 American and Canadian
scholarsare frequent. Second, the fact that law is taught as an undergraduate subject
everywhere except Canada5 and the United States is a distinction largely irrelevant to
the issues discussed in the books. Many law professors have experience as students
and teachers at both undergraduate and postgraduate levels, and can attest to the
similarity of experience and issues (although professors at self-proclaimed high
status schools would disagree in order to protect their elitist aspirations). While the
material and creature comforts and compensations are greater in postgraduate law
faculties, the issues relating to what they do are no different once it is decided (as it
has been) that a narrow training for the practice of law is not appropriate. Ironically,
once postgraduate law faculties eschew being vocational training schools closely tied
to the profession for academic scholarship, they have endangered their higher status,
privileges and perks. Why should they enjoy greater status if all they are offering is
another version of the undergraduate liberal education, albeit in law? Salaries based
on compensation for Bay Street practices selflessly foregone become vulnerable, as
do individuals who do not satisfy higher levels of scholarly achievement for
employment,
tenure, and promotion associated with mainstream university
employment.
Who, then, are these fabulous people called law professors? In Legal Academics,
Cownie states that her purpose is to analyse the lived experience of law teachers at
English universities. By examining the everyday lives of legal academics, she seeks to
describe both the culture of academic law and the professional identities of academic
lawyers.6 To do this, Cownie interviewed fifty-four legal academics at seven English
law schools in 2001 and 2002. Interviewees were drawn from four old universities
and three new universities in order to ensure representation from Oxbridge, old
civic, new civic and former polytechnics. Cownie also ensured that the interviewees
were representative of the legal professoriate: eighteen experienced, fifteen mid-
career and twenty-one early career; thirty-five men and nineteen women; twenty-six
professors or readers and twenty-eight lecturersall drawn from various approaches
to the study of law (doctrinal, socio-legal, etc.).7
After an interesting and fair overview of the recent trend in law faculties from
doctrinal to contextual (feminist, critical, socio-legal, etc.) approaches to the study of
4 Scots and Irish law professors operate in their own respective self-enclosed worlds for legal and
cultural reasons.
5 Until the Americanization of Canadian legal education, led by the Laskin revolt at the University
of Toronto, Canadian legal education was, with a few exceptions, an undergraduate affair. The
Department of Law at Carleton University is the only continuing undergraduate program dating from
the late 1940s to offer a B.A. in Law, although it has undergone several institutional transformations
since then.
6 Legal Academics, supra note 2 at 1.
7 See ibid. at 14-16 for Cownies research methodology.
455
BOOKNOTES / RECENSIONS
2005]
law,8 Professor Cownie proceeds to her main project: a sustained qualitative
examination of the lived experience of her subjects. Unsurprisingly, she found
academic law to be in a state of flux from doctrinal to pluralistic approaches: about
half of her respondents characterized themselves as doctrinal scholars, although most
of these also stated that they consider policy and contextual matters in their teaching
and research.9 She found a consensus that an academic lawyer need not be highly
intelligent or even intellectual in a cultured sense, but required an enquiring and
analytical mind and an ability to focus on a rigorous interrogation of a problem. She
found that being single-minded about research, being male, and having an ability to
network were perceived to be required to progress through the ranks, but that the
personal measures of success, of research reputation and peer esteem, were more
important to individuals, a trait shared with academics in other disciplines.10
Again, unsurprisingly, Cownie found that legal academics were very positive
about their choice of career and felt proud to be law professors. Personal autonomy
was identified by interviewees as being most important to their professional
satisfaction. Most professors attached importance to teaching and research quality, but
disliked those aspects of the job that impinged on their autonomy, such as
administration, accountability, and career audits.11 Most thought of teaching as a
performance and desired to be good performers, although many did not think that
research played quite as important a role in their professional identities.12 University
administration fell disproportionately to women and good citizens (or suckers),
adversely affecting their career progression.13 A number of negative aspects of law
school culture were also noted to be of increasing concern, including the publish or
perish push, increasing student enrollment, and increasing central government
auditing and accountability. There was a sense that legal academics, like academics
generally, are being proletarianized,14 and
this has significance for future
scholarship.15
Finally, Professor Cownie found that academic lawyers became academics by
choice. Most originally studied law with the intention of practising, and many had
practising experience before deciding that scholarship was a preferable way of life.
These professors did not regard their career choice as second best to a career in
practice and their attitudes toward professional success were similar to those of other
8 Ibid. at 27-47.
9 Ibid. at 72. This number is likely lower in Canada but there are no comparable studies to confirm
my surmise.
10 Ibid. at 95.
11 Ibid. at 118-19. The UK Research Achievement Exercise (R.A.E.) is the source of considerable
stress (see 139-41).
12 Ibid. at 141-42.
13 Ibid. at 143-50.
14 See Richard Collier, The Changing University and the (Legal) Academic CareerRethinking the
Relationship Between Women, Men and the Private Life of the Law School (2002) 22 L.S. 1 at 30.
15 Legal Academics, supra note 2 at 165.
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academics, favouring reputation as a scholar rather than accumulation of wealth.
Cownie concluded that while there remains considerable ambiguity as to what
academic lawyers should be doing (doctrine or socio-legal scholarship, pure
scholarship, or training for the profession), there exists within the profession complete
self-confidence about the value of academic work, about the value of that career
choice, and about the position of the study of law in a university.16
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The question of what law professors should be doing is taken up by Bradney in
Conversations, Choices and Chances. His answer is simple: law professors should
provide a liberal education. He reinterprets the historical concept of the liberal
education as a backdrop for the protection and enhancement of pluralism within the
university law school. A liberal education provides the framework for the wide variety
of approaches to legal scholarship found within the contemporary law school, all of
which Bradney thinks are appropriate to the law school culture, although he is
unenthusiastic about doctrinal approaches if they are limited to narrow rule
restatement without fleshing out related policies and principles.17
Professor Bradney begins by re-examining the historic notion of a liberal
education. The work of John Henry Newman takes pride of place in this analysis:
knowledge for its own sake; the principles on which knowledge rests; the inculcation
of character, a disposition toward life and a habit of mind tempered by freedom,
equitableness, moderation and wisdom.18 Bradney suggests that recent educational
trends toward utility have not erased the basic notion of a liberal education, but have
underlined its core significance and function in any society, university, or higher
education.19 Bradney then turns to consider what a liberal education might involve.20
The first purpose of a liberal legal education is to give structure to the curiosity that is
inherent in being human, not as entertainment or for temporary intellectual satiety, but
for giving purpose and direction for life. Rather than determining what students will
become, or what they will take away from law school, this approach introduces
students to the wide variety of conversations within and about law. It should afford
students the opportunity to select their individual, future ends. Bradney supports the
present pluralistic curriculum, which ranges from the doctrinal to the various socio-
legal approaches currently taught.21
16 Ibid. at 198-99.
17 Conversations, supra note 3 at 28-29.
18 John Henry Newman, The Idea of a University, ed. by I.T. Ker (Oxford: Clarendon, 1976).
19 Conversations, supra note 3 at 31-84. See e.g. U.K., National Committee of Inquiry into Higher
Education, Higher Education in the Learning Society (London: National Committee of Inquiry into
Higher Education, 1997), online: University of Leeds
Ron Dearing).
20 Conversations, supra note 3 at 85-104.
21 Ibid.
BOOKNOTES / RECENSIONS
2005]
The second and the most important element22 of a liberal legal education is to
learn to reason well so as to see the pervasive nature of the issues and values inherent
in the law and the world around us. This involves the inculcation of matters that are
wholly technical as well as a mastery of depth and detail.23 A law student should
know some part of the world in an empirical sense if structures and values are to be
truly understood. The choice of technical subject matter is of little importance; rigour
is what is required. Doctrine is part of a liberal legal education, but narrow vocational
courses are not.24
457
Bradney then goes on to give an example of how a legal principle can be opened
up to deliver a liberal education. The choice of principle is obvious: Lord Atkins
neighbour principle in Donoghue v. Stevenson.25 Bradney shows who Lord Atkin was
and highlights his Christian motivations.26 Bradney then proceeds to explicate the
values underlying the principle and considers why they might be accepted or rejected
in postmodernity.27
In Bradneys view, students who have acquired the intellectual tools provided by
a liberal legal education, including flexibility, will be able to address the wide range
of ever-changing tasks that will await them in their lives beyond law school, both in
the practice of law and in other employment life. He also thinks that the skills
inculcated in a liberal education will help students make the myriad other decisions,
including personal decisions, that they will have to make in their lives.
Bradney then goes on to consider the implications of his version of the liberal
education for research and administration. In both cases, he expresses his views about
what should be taught and how it should be taught: plural views, topics and
perspectives should be promoted in research. Furthermore, the administrative
apparatus should value the requirements for a pluralistic education, such as individual
autonomy, faculty equality,
to encourage
conversations), and limits on excessive top-down management and excessive audits.
In a chapter entitled A Short History of Madness,28 Bradney is bitingly critical of
the central state assessment process recently introduced into British universities. He
identifies this process as a danger to liberal education as a proper training for life in
society and as a danger to the traditional vision of the liberal law school (and of those
who teach and learn in it) once associated with the monastery and Oxbridge. Now
adopted by Bradney, this vision is an all-consuming vocation, true and simple: This I
do for love.29
tolerance and collegiality (so as
22 Ibid. at 90.
23 Ibid.
24 Ibid. at 85-104.
25 [1932] A.C. 562 (H.L.) at 580.
26 The parable of the Good Samaritan: Luke 10: 25-37.
27 Conversations, note 3 at 91-98.
28 Ibid. at 155-87.
29 Ibid. at 189-204.
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Although about different slices of the law school world, the books by Cownie and
Bradney are clearly related and occasionally overlap, for example, in dealing with
attitudes to research and administration. They can be read as two parts of the same
research project: to describe and analyse the contemporary English law professor. In
this, they are fascinating and valuable books. Both provide vivid snapshots of who
teaches law and what they do and think today. But they are simply that: snapshots.
Their descriptions of the contemporary law school are easily recognizable and
accurate portrayals. I suspect most law teachers would agree that they describe their
own faculties, whether in England, Canada or Australia. A future historian of legal
education can rely on these books as an accurate depiction of the common law law
school at the beginning of the twenty-first century.
in
the
legal education, but for
To some extent, these books are also prescriptive. Both authors are pleased with
current directions
increasing emphasis on
accountability. (No surprise there!) What Cownie and Bradney describe, they
prescribe, and those looking for more radical agendas and strategies for legal
education will be disappointed. The texts are fair, even-tempered and portray law
faculties as such (which is a little surprising given the culture wars which flared in the
eighties and nineties). Nevertheless, pluralism, including doctrinal approaches, seems
to have been achieved in legal education, and most are happy with this outcome.
But legal education, like life, must be dynamic, or it will shrivel and die. So the
question is: whats next in the law schools? Neither Cownie nor Bradney offer much
speculation as to future trends. But perhaps it is not possible to do much once the
liberal, pluralistic law school has been achieved other than to revert to a more
monolithic model, such as professional vocational training or the adoption of some
narrow, ideological, party outlook which will determine and rigidly police all that is
taught and published. And that may be the future.
John Henry Newmans vision of the university, as adapted by Bradney to law
teaching, suggests that that openness to all that is human is the best vision of what all
university education should be about. But Newmans vision was of a university that
played a role in a transcendent drama whose origin and end were not of this world,
but which gave meaning to all in this world. The immanentist ends of university
education will always be disputed so long as this world is the horizon. Pluralism is a
compromise. The culture wars will continue.
M.H. Ogilvie*
* Chancellors Professor and Professor of Law, Carleton University, Ottawa, and of the Bar of
Ontario.
