Thank you for sharing!

Your article was successfully shared with the contacts you provided.
One of the most storied debates in economic theory is over the relative performance of markets and centralized planning. Intuitively, centralized planning has an edge; it can coordinate the use of resources in an intelligent, systematic and rational fashion. Markets, however, are chaotic, with no wise leaders at the helm. But first impressions can be wrong. The vices of centralized planning are impossible to avoid. No single person or institution has a big enough brain to coordinate effectively the activities of millions of separate individuals each with his own preferences and abilities. The price system, which results from the unplanned coordination of different individuals, allows these hordes to send out strong signals as to how much they value particular resources without having to persuade a central authority of their goals and chosen means. Centralized planning looks comprehensive and rational, but at best it responds slowly to new profit opportunities; at worst, its leaders, drunk with power, may succumb to corruption. Centralized planning has few defenders today. But on matters of education, the system shows a continued resilience. Comparing the English and American education systems offers graphic illustration of the long-term debilitating effects of centralized control. When I was in Columbia College in the early 1960s, there was little question that Oxford and Cambridge were envied even by their most distinguished American rivals. Today, for all their flaws, the intellectual dominance of American universities is taken for granted, even after accounting for the major contribution of some English academics. Why the reversal? English universities are public-largely dependent for revenue on the largess of the national government. There is far less competition for faculty between universities, both public and private, in different states, as in the United States. Consequently, political pressures work to keep English tuition and fees low, which, in turn, keeps down academic salaries. Promising scholars turn to other occupations or flee to the United States and elsewhere. Our decentralized system of public and private universities is better able to weather these storms. This aspect of centralization, however, tells only part of the story. Of equal importance is a feature of my own English legal education that holds true today. Examinations in English universities are not given by individual instructors, but by the faculty as a whole-with enormous consequences for academic excellence. In the short run, much may be said for centralized control over examinations. Some teachers are weak and eccentric; the system of faculty exams reduces their influence and allows able faculty to maintain higher schoolwide academic standards for all. But in the long term, this static system is utterly disastrous for intellectual innovation, for by knocking out the bottom rung, it also knocks out the top. Suppose in the 1960s an able young academic had the intriguing but untested idea to use economic tools to gain insight into tort law. An English Guido Calabresi would have had no student laboratory to test his ideas. Diligent students would be intent on taking required examinations set by the established members of the faculty and would have little interest in mastering the inchoate ideas of one off-beat professor. The standardization of the examination system necessarily leads to a standardization of instruction, and hence a standardization of thought. The teachers who cannot test out their own ideas on their own students can never develop them with the richness that they deserve. Ideas die stillborn: Law and economics reached England a generation later than it did here and it still has only a small toehold in undergraduate legal education. Compounding the problem, faculty control over examination severely retards the introduction of new courses. Curriculum is set and changed by the faculty as a whole. Sometimes external events force modifications; European Union law obviously had to be added to the English syllabus. But the demands of the oddball youth are largely ignored. Individual instructors, with yellowed notes of traditional courses, will engage in protectionist activity, suppressing curricular innovations that could cause them sleepless nights. Here, we take it for granted that any faculty member can introduce a new seminar and then a new course to pursue what might turn out to be a harebrained scheme. The resulting curriculum will often look like a mess, but appearances can be deceiving. American students have much greater need to decide proactively which courses are worth taking and which ones are not. A disastrous innovation will meet with rejection the next time around. Successful innovations will spread until they gain a foothold in the standard curriculum. The Oxford undergraduate law curriculum has not moved much in 40 years, and the vast bulk of the innovation there came in the growing graduate school program-which follows the American model with teachers setting their own exams. The stakes here extend beyond the university, for the strength of an academic system is reflected in the performance of its graduates. The lockstep progression of the English system narrows the range of skills that their graduates bring into their professional lives. In contrast, the rise of American law firms can be traced to the unruly richness and diversity of American legal education. Hence this somber truth: English legal education will not regain academic pre-eminence until it abandons the real advantages of the set curriculum for the dynamic chaos and occasional incompetence of the American model. Richard A. Epstein is the James Parker Hall Distinguished Service Professor of Law at the University of Chicago Law School and a senior fellow at the Hoover Institution in Stanford, Calif.

This content has been archived. It is available through our partners, LexisNexis® and Bloomberg Law.

To view this content, please continue to their sites.

Not a Lexis Advance® Subscriber?
Subscribe Now

Not a Bloomberg Law Subscriber?
Subscribe Now

Why am I seeing this?

LexisNexis® and Bloomberg Law are third party online distributors of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® and Bloomberg Law customers are able to access and use ALM's content, including content from the National Law Journal, The American Lawyer, Legaltech News, The New York Law Journal, and Corporate Counsel, as well as other sources of legal information.

For questions call 1-877-256-2472 or contact us at [email protected]

Reprints & Licensing
Mentioned in a Law.com story?

License our industry-leading legal content to extend your thought leadership and build your brand.


ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2021 ALM Media Properties, LLC. All Rights Reserved.