A Graduate Program of Real Consequence: The Role of the Law School at BYU

What a pleasure it is to be with you this evening. It feels like I am back home. While I value all of our programs at the university, I will openly confess that the Law School holds a special place in my heart. It is a place that has greatly shaped my life, both as a student and as a faculty member.

The Mission of BYU

Those who have followed my tenure as president know that my focus from the outset has been on the mission statement of the university, a foundational document approved by the BYU Board of Trustees in 1981. It sets forth the key principles that guide the university. Many of you will be familiar with the first sentence of the mission statement, which indicates that, in its broadest sense, our mission as a university “is to assist individuals in their quest for perfection and eternal life.”¹ We are to provide what President Spencer W. Kimball called an “education for eternity,”² an education that, in the language of The Aims of a BYU Education, is “(1) spiritually strengthening, (2) intellectually enlarging, and (3) character building, leading to (4) lifelong learning and service.”³

A quick review of the mission statement makes two things very clear:

First, our primary focus is on teaching ­students. That may seem obvious. You may think that every university focuses on teaching students; that is why they exist. That is true. But at many universities the size of BYU, the focus on teaching students is counterbalanced against an emphasis on faculty research, with students sometimes relegated to coequal or even secondary status in some decisions. While research is an important part of what happens at BYU, various features of the mission statement remind us that students must remain the central priority.

For example, the word students appears in the mission statement seven times. The word faculty appears twice. The word administrators appears only once. Although I am quite confident that the authors of the mission statement did not engage in a careful word count to ensure that the relative importance of each group was precisely represented in the numeric ratio, the relative use of each term serves as a reminder that our mission focuses on the ­students—and not on the faculty or anyone else.

Second, consistent with the emphasis on students, the vast majority of the mission statement focuses primarily on undergraduates and what they should learn. The description of the type of education students are to receive is geared primarily to undergraduates. According to the mission statement, students are to receive a broad general education with in-depth learning and instruction in a selected major field.⁴ In other words, they are to receive a traditional liberal arts and sciences undergraduate education.

Our enrollment numbers reflect that same undergraduate focus. We have approximately 33,000 full-time students, of which 30,000 are undergraduates; only 3,000 are graduate students. At many major universities the balance is much closer to 50/50 or in some cases is even weighted more heavily in favor of graduate students.

Thus the mission statement makes clear that BYU is primarily an undergraduate teaching institution, not a graduate research institution. The only reference to graduate programs in the mission statement is in a single phrase indicating that research should be encouraged among both faculty and students, “including those in selected graduate programs of real consequence.”⁵

Given that undergraduate emphasis, one might ask, What is the role of the Law School in fulfilling the mission of BYU? This is a question I first began to ask myself when, as dean of the Law School, I realized that I was the only dean on campus who had absolutely no undergraduates in my college—not necessarily a comfortable position at a university whose primary focus is on undergraduates. So as I sat in Deans Council, I began to ask myself, How does a purely graduate program like the Law School fit in a place like BYU?

This evening I would like to offer some thoughts on that question. What can—and should—be the role of a law school at a university like BYU, whose clear focus is on undergraduate learning? Or, to use the terminology of the mission statement, what does it mean to be a graduate program “of real consequence” at BYU, and does the Law School fit that definition?

Law Schools in America’s History

The question of how a law school should fit into the larger university is one that has been debated for much of America’s history. Although the early European universities included law as one of the central subjects to be studied,⁶ at the time of the American Revolution most lawyers entered the profession via an apprenticeship.⁷ Legal education was simply not a feature of most universities at the time.⁸

That trend continued through the nineteenth century as well. Most lawyers in the 1800s began the practice of law without ever attending law school. They became lawyers the way Abraham Lincoln did, by reading the law part-time. Today’s first-year law students may contemplate with envy the scene described by one of Lincoln’s friends: the future lawyer-president learned his craft by sitting under an oak tree reading law books day after day, moving around the tree to keep in the shade.⁹ That sure beats sitting in a sterile classroom, waiting fearfully to hear the sound of your name called by professors who seem to expect you to already know what you thought they would teach you.

By the end of the nineteenth century there were law programs at a number of universities. Still, an 1891 report found that only one in five lawyers admitted that year had been to law school, and no state required law school attendance as a condition of admission to the bar.¹⁰

Moreover, even where there were law schools there were serious questions about whether they belonged in a university. Many academics in other fields viewed legal education as vocational training, an endeavor they considered beneath the dignity of institutions dedicated to the lofty ideals of a liberal arts education. The second-class status of early law programs within their universities was demonstrated by the fact that, in 1901, “opponents of Georgetown’s athletics program were irritated to discover [that] a disproportionate number of Georgetown’s athletes [were] enrolled in the law school.”¹¹ In the eyes of many, law school courses were the “underwater basket-weaving classes” of their time.

The relatively low esteem in which law schools were held is furthered illustrated by the fact that no one thought it odd that future Supreme Court Justice Hugo Black was not accepted into the college of arts and sciences at the University of Alabama in 1904 but was admitted without difficulty to that university’s school of law that same year.¹²

Summarizing the views of many academics at the time, Thorstein Veblen asserted in 1918 that “the law school belongs in the modern university no more than a school of fencing or dancing.”¹³

This thinking slowly changed as legal education moved toward a graduate school model. At the beginning of World War I, only two law schools—at Harvard and the University of Pennsylvania—required undergraduate degrees as a condition of admission.¹⁴ Others began to impose that requirement but essentially provided open enrollment to anyone with a college degree, often failing out a large number of students after admission.¹⁵ Yale led the way toward selectivity by limiting its class size to 100 students in 1926 and, in 1928, becoming the first school to require an aptitude test in addition to a college degree.¹⁶

Over time law schools became more selective and more academic, and as a result they began to gain greater stature within the university system. Today most universities with law schools proudly point to them as examples of excellence within the university. I think few, if any, quibble about whether law schools belong at a university.

One reason the debate ended is that, over time, law schools became profit centers for their universities. Because the faculty-student ratio in law school is so much higher than that of most graduate programs and because legal research does not require expensive labs or equipment, law schools cost much less per student than most graduate programs, and they typically produce excess revenues that they share with the university. It is easy to welcome as a member of the university a program that regularly generates revenue for the university. By that monetary measure, law schools have generally been “of real consequence” to their universities for quite some time. However, the recent dramatic decline in law school applications may alter the way universities think about their law schools. As enrollments, and therefore revenues, decrease, some universities now find themselves in the position of subsidizing their law schools. My guess is that the term “of real consequence” may be used in quite a different way in conversations between those law schools and universities today.

The Law School’s Role at BYU

Fortunately, because of BYU’s unique funding model—under which basic funding is provided by our sponsoring Church—tuition does not provide the major source of funds for either the Law School or the university. As a result, the Law School’s role at the university has never been defined in financial terms. At BYU we must look for some nonmonetary definition of what it means to be a graduate program of real consequence.

Key insights into what elements might be included in that definition at BYU come from a speech given by President Marion G. Romney at the dedication of the Law Building in 1975. President Romney was one of the prime movers in the establishment of the BYU Law School. Thus it was appropriate, and instructive, for him to explain, in his words, why he “used such influence as [he] had” to establish the Law School.¹⁷ President Romney gave several reasons, three of which I want to highlight tonight.

First, he said, “I have long felt that no branch of learning is more important to an individual or to society than law.”

Second, he said, “I further felt that the educational base at Brigham Young University—the flagship of our Church educational system—would be and should be broadened by the establishment of a law school.”

Third, he said, “I likewise felt that the atmosphere of honor, integrity, patriotism, and benevolence prevailing at Brigham Young University would be a good influence upon a law school and its student body.”¹⁸

The latter two reasons seem particularly relevant to my topic because they directly address the relationship between the university and the Law School, so I will begin with those. But, as I will explain later, I believe that the first reason also sheds clarifying light on why we could consider this law school a graduate program “of real consequence” at BYU.

With respect to the second and third reasons identified by President Romney, I note the focus on both the impact the Law School could have on the university and the impact the university could have on the Law School. President Romney seemed to envision a symbiotic relationship in which each entity would be helped by cooperating with the other.

In the interest of time, I will not describe in much detail the things the university can do to enhance the Law School, but let me point out one thing by way of instruction and advice for the law students here. The language President Romney used to describe the positive impact the university would have on the Law School is interesting. He said it was “the atmosphere of honor, integrity, patriotism, and benevolence prevailing at Brigham Young University [that] would be a good influence upon a law school and its student body.”¹⁹ It is the atmosphere—the environment, not some specific university program or service—that would benefit the Law School and its student body.

I don’t know exactly what President Romney had in mind, but when I think about the atmosphere that prevails among the undergraduates at BYU, I picture the thousands of eighteen- to twenty-year-olds in the freshman class I greeted just today. They are extremely optimistic, enthusiastic, and, yes, maybe a little naïve. But they radiate goodness and warmth. And I hope that their optimism and enthusiasm are a bit contagious. The study of law can breed cynicism and pessimism. And although you need to advance beyond the level of the somewhat clueless naïveté that afflicts some of the undergraduates on our campus, I hope you follow Elder Bruce C. Hafen’s important admonition to “view things not only with [your] eyes wide open but with [your] hearts wide open as well”²⁰ and “to be as childlike as [your legal] education has taught [you] to be tough-minded.”²¹ If you find yourself becoming too jaded, too cynical, and too combative—or if others find you that way—I urge you to wander across the rest of campus or attend a student performance or a devotional and soak in the refreshing and rejuvenating atmosphere that these wonderful undergraduates help create on campus. Your life and the lives of your loved ones will be much better in law school if you do.

Helping the University Accomplish Its Mission

With that observation and invitation, let me now turn to the other part of President Romney’s vision: what the Law School can do to help the university accomplish its mission. As I noted, the primary focus of the university is on our undergraduate students. One might think that, as a solely graduate program, the Law School might have little or no impact on that portion of the student body. But that is not the case.

In his most recent annual report to the university, Dean D. Gordon Smith outlined three ways in which the Law School directly enhances the educational experience of our undergraduates. First, in the past few years Law School faculty members have developed and taught undergraduate classes—such as Brigham Daniels’s course on environmental policies and Justin Collings’s course on the history and workings of the U.S. Supreme Court.

Second, some Law School faculty have also responded to the university’s emphasis on undergraduate mentoring by involving undergraduates in their research projects. For example, this last year Dean Smith, David H. Moore, and D. Carolina Núñez employed thirteen BYU undergraduates in their Law and Corpus Linguistics Project. Another twenty-four undergraduates provided more than 1,300 hours of volunteer time on that project.

Third, law faculty have also been increasingly involved in interdisciplinary work with other faculty members on campus. These collaborations are developing into faculty “clusters,” which lie somewhere between completely informal and ad hoc collaborations to more formal ongoing research and curriculum projects. Clusters have developed on such topics as law and entrepreneurship—with professors Curtis Anderson, Clark D. Asay, Stephanie P. Bair, A. Christine Hurt, and Matthew Jennejohn as well as Dean Smith joining faculty from the Marriott School of Management—and there is a cluster on opportunity and development in which David Moore, Carolina Núñez, and Michalyn Steele are working with faculty from Political Science and Sociology to address issues involving economic and other development in underserved areas.

This outreach to undergraduates and undergraduate programs should never become the principal focus of the Law School. The Law School’s primary role is, and needs to remain, to provide an excellent legal education to our law students. But these examples demonstrate that the recent changes to the west entrance of the Law School are symbolic of a larger movement connecting the Law School to the rest of the university.

The Law School has, over the years, also made a disproportionate contribution to university leadership. The thirty-six full-time faculty members at the Law School constitute less than 3 percent of the more than 1,400 full-time faculty members at the university. Yet three of the six BYU ­presidents—50 percent—who have served since the Law School opened its doors forty-three years ago have been Law School faculty members. In that same time period, law faculty members have also served in the university administration as provost, associate academic vice president (two of them), assistant to the president, and faculty athletic representatives to the NCAA (again, two of them). Numerous other faculty members have headed up important committees or other endeavors at the university. Kent D. Syverud, the president of Syracuse University and a former law dean at two other law schools, observed that this is because “law school . . . is genuinely a group of people who are problem solvers, and [they] can be deployed on problems across the university.”²²

Dean James R. Rasband often described a law degree as a degree in leadership.²³ While one may question the quality of the current university leadership, BYU provides ample evidence of the truth of that observation. The Law School has provided extraordinary leadership to the university and will continue to do so.

The Law School also has a positive impact on the university in a number of other less direct but often equally important ways. To cite one example, one of the great challenges currently encountered by religiously affiliated universities, including BYU, is the dramatic increase in regulations that create pressure for those universities to abandon some of their religious norms in order to accommodate other values. In many cases a religious university’s ability to continue to pursue its own distinctive vision of education and life will ultimately depend on the extent to which religious liberty is recognized and enforced as an important legal and cultural norm in American society.

The Law School again has a disproportionate role in helping the university in that regard. The work of the International Center for Law and Religion Studies has an enormous positive impact on the entire university in that respect, not only because of the influence it has on the development of legal norms throughout the world but also because of the relationships it creates with other scholars and religious liberty advocates, who often become key allies in matters directly affecting the university.

Less obvious are the contributions made by the Law School itself in dealing with such sensitive issues. For a variety of reasons, the Law School is often the first unit in the university to face the challenges that arise when our religious values conflict with other norms. And the positive and productive way the Law School has handled those matters provides guidance to the university on how to work through such issues. In those endeavors the Law School has also built relationships of trust with external entities and developed expertise that the university can draw on when it faces those same issues.

There is a good reason why former Law School dean James D. Gordon III heads up the accreditation efforts of the university. I daresay that no one on campus has thought as deeply about or had as much experience with such important and sensitive issues as has Jim. That expertise and experience alone would be of enough value to qualify the Law School as a program of real consequence for the university.

There are other indirect benefits that the Law School provides to the university, some of which are even less obvious. As one example, let me return to President Romney’s observation about what impact he hoped the Law School would have on the university.

The language President Romney used to describe that impact might be a bit surprising to those familiar with the nature of most graduate programs. He indicated that “the educational base” of the university “would be and should be broadened by the establishment of a law school.”²⁴ If asked to describe the purpose of most graduate programs, few academics would use the word broaden. Deepen maybe—but not broaden. Most graduate programs require students to narrow their focus—to become more specialized—so they can study the narrower subject more in depth. There is some truth to the old saying that as one ascends the academic ladder from an associate’s degree to bachelor’s, master’s, and doctoral degrees, students learn more and more about less and less until they know everything about nothing.

Yet President Romney chose the word broaden. He may have simply been indicating that by adding another program to the university, the university’s educational offerings would be expanded. But I suspect that President Romney, who was very careful in the language he used, intended to convey something more significant than that self-evident truth. I believe he was saying something about a distinctive and extremely valuable aspect of a graduate legal education. Dean Rasband articulately made a similar point in his remarks to entering law students, as recorded in the latest edition of the Clark Memorandum:

If you consider the nature of most graduate education, its purpose is to narrow your field of vision and train you as an expert in a particular field, the classic example of which is a dissertation on a narrow subject on which no one else has written. The study of law, by contrast, is designed to broaden your field of vision and equip you with the tools to make judgments across the full range of human experience.²⁵

Legal education is different from most other graduate programs. It is not a more focused study of topics already covered in the undergraduate years. It is a new way of approaching problems, a new way of thinking about matters, even a new, empathetic way of thinking and feeling about people.

A graduate program that aims to broaden one’s horizons, to start anew after finishing college, contributes to the mission of the university by providing a living reaffirmation of BYU’s commitment to lifelong learning—learning not just in a particular topic but on every topic.

And at BYU that kind of lifelong learning is especially important. In describing the broad general education we hope to provide our undergraduate students, the mission statement contains an important introductory phrase explaining the reason why a broad education is important to us. It reads, “Because the gospel encourages the pursuit of all truth, students at BYU should receive a broad university education.”²⁶ We don’t provide a broad general education for our students just so they can be well versed enough to be interesting company at dinner parties and receptions. Our educational goals go well beyond that. We are helping prepare students for a postmortal life in which they can know all things.

Having a graduate school that focuses on broadening rather than narrowing things provides a powerful reinforcement of that message. It makes clear that the broadening form of learning that is at the heart of our general education requirements should not, and does not, end with the receipt of a bachelor’s degree but extends into one of our most visible graduate programs and even beyond that.

That more amorphous but potentially longer-lasting contribution of the Law School to the university’s mission underscores another significant role the Law School can play in helping the university achieve its main goal—the goal of assisting “individuals in their quest for perfection and eternal life.”

Assisting in the Quest for Perfection and Eternal Life

In the long run, our primary purpose as a ­university is to help our students acquire the knowledge, attributes, and character that will enable them to realize their full potential as “a beloved spirit son or daughter of heavenly parents” with “a divine nature and destiny.”²⁷ We do not provide all they need to attain that lofty status. Ultimately, the full realization of that goal requires adherence to the key principles of the plan of salvation, including receiving saving ordinances, making and keeping sacred covenants, and adhering to the other commandments that God has given us. Most of all it is dependent on our accessing the enabling, sanctifying, and transforming powers that Christ makes available to us through His great atoning sacrifice.

The university cannot accomplish those things, but I believe there is still a role for it to play in that celestializing process for all our students, including law students. We are to “provide a period of intensive learning,”²⁸ not just in abstract principles of temporal knowledge but also in actual character and skill development.

Earlier in my life I believe I had misconceived the full purpose of our mortal experience. In my undergraduate years I thought of life as a longer version of an academic course—“Earth 101,” if you will. The primary purpose of the course was to learn enough from life’s experience to pass the final exam. And once that happened—once we graduated to the next level of our existence—we could forget what we had learned in this life, just as I quickly forgot much of what I had learned while cramming for a test once the final was over.

Over the years I have come to appreciate that God effectively and efficiently uses this mortal period of our existence not just to test our ability to survive in this fallen world with all its challenges but also to help us develop the skills and attributes that will enable us to realize our full potential in the next life—to develop what I have come to call celestial skills and attributes, those characteristics that celestial beings possess.

Most of those characteristics are developed by adherence to the commandments with which we are all familiar. But I believe that God in His economy also provides us with opportunities to develop celestial skills in our day-to-day lives and that skills we might think are valuable only in helping us succeed in our temporal affairs are actually celestial skills that we will use in the next life. To use one example, I believe that the ability to counsel with councils is a skill set that will not only help us in our temporal affairs in this mortal existence but is one that we will continue to use—and will need to perfect—if we are to be exalted.

I suggest that some of the skills we learn and develop in law school may be celestial skills. As I mentioned, the skill of lifelong learning is not just an aid in making ourselves interesting and interested through our retirement years. It is a celestial skill that we will need to acquire if we are to be like God. I don’t think Brigham Young was exaggerating when he said, “When shall we cease to learn? I will give you my opinion about it: never, never.”²⁹ Brigham Young also observed, “We do not expect to cease learning while we live on earth; and when we pass through the veil, we expect still to continue to learn and increase our fund of information.”³⁰ Lifelong learning, an attribute law school helps us develop, is—in my view—a celestial attribute.

I think there are other celestial skills law school can help us develop. For example, it seems to me that the ability to frame and use questions—a skill widely practiced and modeled in law school—is a skill we may readily employ in the next life. Elder Marlin K. Jensen eloquently explained this in a Law School graduation speech a few years ago:

The use of . . . interrogatories by a loving and wise Heavenly Father guides us. The technique enables him to raise relevant issues, to encourage our thoughtful analysis of them, and then to leave us to the exercise of our agency to act. It sounds almost lawyerlike; but I would prefer to describe the process as godlike.³¹

Similarly, legal education should enhance our ability to empathize with others, to see things from their vantage point, and to understand more fully how they think and feel. Those are skills that help lawyers in the practice of law, but they are also skills that have eternal significance. Let me share what I observed in a different setting:

While the traditional study of law emphasizes the utilitarian importance of tolerating the views and differences of others, the laws of God require it as a manifestation of our love for God and His children.³²

The development of empathetic thinking and feeling that a legal education can promote may contribute to the development of our ability to love as the Savior loves and to truly possess charity, a central and essential celestial attribute.³³

My guess is that there are other celestial skills that this law school can help you develop. That may be one of the many meanings behind President Romney’s assertion that “no branch of learning is more important to an individual or to society than law.”³⁴ If we follow President Romney’s challenge to learn the laws of man “in the light of the ‘laws of God,’”³⁵ we might discover that there is more glorifying light in a legal education than we may have supposed.

And so I end where I began, with the university mission statement. Let me suggest that, contrary to what I might have implied or expressed earlier, that document has more application to the Law School and the Law School experience than may appear at first glance. Even though graduate programs are not its main focus, the key components of the mission statement—especially our desire to “provide a period of intensive learning” to assist students “in their quest for perfection and eternal life”—are fully applicable to all BYU students, including—and maybe especially—BYU law students. In that, if in no other way, the Law School provides a graduate experience of real consequence.

We may not know all the ways in which the Law School contributes to that mission, but I am confident that just as the Lord is “well pleased that there . . . be a school in Zion,”³⁶ He is well pleased that there be a law school in that school. I firmly believe that in the process of time we will come to view with greater appreciation—and maybe even reverence—the role the Law School plays both in influencing a world we wish to improve and in preparing souls for the world to come. May it be so is my prayer, in the name of Jesus Christ, amen.