The Chronicle of Higher Education reported in its Nov. 30 issue
that Associate Justice Clarence Thomas of the United States Supreme Court
blasted contemporary law schools for what he perceived to be their
deviation from traditional legal curriculum, moving toward social science
and critical theory.

According to the Chronicle, in a speech at Samford University,
Thomas said, "The Federalist Papers would never have made
publication in a modern law review.

"[O]ne's political and social agenda matter more than reason and

Thomas gave credit to his law clerks for supplying him with the inside
information as to the plight of contemporary legal education. Thomas cited
courses like "Cinematic Images of Lawyers and the Law" and "Thinking About
Thinking" as examples of legal education's wrong turn at some of the
country's top schools.

First, relying upon one's law clerks to assess the current disposition
legal study and to critique the merits of its curriculum is itself highly
suspect. Supreme Court law clerks are infamous for their rather skewed
perception of reality. If we didn't take their opinions with a grain of
salt, anyone who read The Brethren (by Bob Woodward) would think
that the entire burden of dispensing justice in this country lay in the
hands of the over-worked, super-brilliant, and obviously narcissistic
Supreme Court law clerks.

Second, surely Justice Thomas could have presented better examples to
advance his argument. "Thinking about Thinking" from its title would seem
to connote a course grounded in logic. It would be rather shocking if a
course like this did not incorporate the basic principles of jurisprudence.
"Cinematic Images of Lawyers and the Law" would probably help budding
lawyers understand the media perception of the profession their about to
enter. How can one understand fully understand their profession without
knowing context.

Rifle through the pages of the University of Tennessee Graduate School
Catalog (pp. 118-119) and read for yourself the curriculum that Thomas
purports to be devoid of legal practicality, advancing some social agenda.
Courses like Torts, Criminal Procedure, Constitutional Law, and Tax Theory
line the pages. There is nothing that Thomas would find too objectionable.
This may be the University of Tennessee School of Law curriculum, but core
classes such as the ones taught at Tennessee are taught everywhere. To be
sure, there are several schools that offer courses like the ones cited by
Thomas, but have they no legal purpose?

Thomas' claim that the The Federalist Papers would not be published
today is also a specious argument when you consider the two contrasting
political climates of today and the late-eighteenth century. And even if
we were to accept Thomas' implication that contemporary law schools are
becoming too political, it would seem an ideal environment for publication
of the those papers.

Thomas' remarks are puzzling considering the prevailing assessment of the
state of contemporary legal studies. One would be hard-pressed to find
something as extreme as the examples cited by Thomas, examples that
themselves seem to be less than invidious to practical legal scholarship at
any institution.