An American Constitutional Scholar: Gilding the Lily

No one in one’s right mind would claim to be a scholar of chemistry after just three years of courses even if all of them were in natural science or even just chemistry. Nor would a business student, after just three years in a business school, claim to be a scholar of business, even if those three years were filled with only courses in business. My first degree comes very close to that (which is why I later studied humanities at Yale), and yet it took two more years in a MBA program and six more in a doctoral program (business and religious studied) before I was declared to be a scholar. So it is with a cringe of incredulousness that I read an opinion piece on MSNBC.com in which the author, Jamal Greene, put in his essay’s title, “I’m a legal scholar.”[1] That he avers that the U.S. was then in a constitutional crisis is hardly a trivial claim in American politics, so his claim of being a legal scholar, rather than only a practitioner and instructor, is important and thus should be subjected to a critique. 

That Greene and the university where he was teaching at the time claim in writing that he “is a constitutional law expert whose scholarship focuses on the structure of legal and constitutional argument”[2] gives the American electorate as well as their elected representatives, including the federal president, the impression that the United States really was in a crisis in governance at the federal level. That he had studied at Harvard and Yale does not mean that his B.A. at Harvard counts as a first degree in law, such that his law degree at Yale is therefore a graduate degree in law. To be sure, his J.D., which is just degree name-change from the LL.B. (the B stands for bachelor degree), was not his first degree in college, but what most Americans do not realize is that the shift from studies in Liberal Arts and Sciences to Law (or any other school of knowledge) is lateral rather than higher. Ironically, I learned this from the registrar of Yale’s law school when I registered to take the Law and Religion course in the law school. I wondered out loud why the J.D. program was not in the Graduate Programs Office. “The LL.M. and J.S.D. are the graduate degrees in law,” the registrar replied. She wrote the citation of a book on the history of the degrees, and I did not lose much time in reading it.

That law schools in the U.S. (but not in the E.U.!) hire faculty who have just three years studying law and even title them as professors rather than lecturers or instructors can thus be seen as a capitulation to practicalities and expediency. That the undergraduates in law schools even edit and select papers for law journals means that being published in such a journal cannot count towards tenure in other disciplines. Even law journals edited and reviewed by law faculty who have only the first degree in law cannot count because those journals are not peer-reviewed by other scholars.

I have read essays running fifty to a hundred or more pages in law journals. The essays that I read on federalism resemble undergraduate essays sans editing, and neither underlying political theory nor history figure much in the analyses. When I was a student at Yale, I asked a law student why he thought he could select papers from political science scholars on international law in spite of the fact that the student had not yet taken international law. “Because I can,” he defiantly replied. He had been given the authority.

It is with a similar unsubstantiated leap of authority that Jamal Greene and many other instructors at American law schools claim to be legal scholars. They are thus disproportionately able to influence public policy and the American electorate. Lest it be countered that law schools in the U.S. do not offer the graduate degree programs in law, at least Harvard and Yale do, because Europeans go to those schools after having graduated elsewhere with a degree in law in order to get a masters and doctorate in law so to be able to be hired as a professor of law in Europe. In fact, I used to invite some of those students to a home-cooked Thanksgiving dinner when I was a student, even though I studied historical theology and philosophy of religion. The Belgian couple would bring chocolate and the Italian guy brought wine, and I furnished some American traditional cuisine. Our shared vocation was scholarship.

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1. Jamal Greene, “I’m a Legal Scholar. We’re in a Constitutional Crisis—and This Is theMoment It Began,” MSNBC.com, April 26, 2025.
2. Ibid.

Ethical Theory in Business Ethics Courses

It may seem like an oxymoron, but faculty administrators at even research universities can be hopelessly narrow-minded regarding knowledge and how it is to be conveyed. For example, how often are faculty members encouraged to give a lecture or two re-teaching material largely missed on exams (followed by another, shorter examination on that material)? Do faculty administrators work with faculty members in professional schools to see to it that the applied courses are not severed from their basic (i.e., more theoretical substratum) discipline? One of the secrets in the “sauce” at Yale’s professional schools (e.g., Law, Divinity, etc.) is this salience of the respective basic disciplines (e.g., political theory and theology, respectively). Synergy comes gushing through once the false dichotomy is recognized. Before I went to Yale, I was a masters and doctoral student at the University of Pittsburgh, where the dichotomy was alive and well in the university’s social reality; I had to “walk back” the dichotomy myself as I discovered philosophy (and religious studies) while I was still studying business.

Business ethics was one of my doctoral fields of study at Pitt. The philosophy department there was at the time one of the best in the U.S., so used an elective to take my first course in the discipline. I began with two intro courses; before I knew it, I was taking junior and senior courses, such logic and philosophy of mind. The latter course turned out to be the most intellectually intense course I took in my 18 years as a university student (had I discovered philosophy in college, I would have three rather than five degrees). It occurred to me at the time to start taking ethical theory courses, as business ethics was one of my doctoral fields. Within philosophy, I gravitated to practical philosophy—in particular, to ethics, political theory, and philosophy of religion. I treated these as foundations for the field of business, government, and society in business.

It dawned on me that none of the business doctoral students concentrating in business ethics had taken an ethical theory course in philosophy. That is to say, I was stunned to find a subfield of ethics reduced to management. Ethics proper is a subfield of philosophy, not business; ergo, business ethics is ultimately grounded in philosophy, with managerial implications. I think business schools have put the cart before the horse and letting go of the horse. A cart without a horse isn't going to go very far (though perhaps it can go in circles).

From my educational experience, I contend that ethics courses in business schools ought to emphasize ethical theory, with managerial implications/applications used as much to illustrate the theories as to understand the ethical dimension of business. Managers in the business world have told me that business schools should do what corporate training cannot, rather than being duplicative. I think deans miss this point, perhaps because they are so oriented to sucking up to corporate managers in order to get corporate donations. In my own thinking, theory enlivens rather than detracts from praxis. I think business school faculties are in the grips of the false dichotomy. Corporate managers would doubtless admit that they are ill-equipped to teach ethical theory. Moreover, training is a better fit with what corporate folks do. Business schools, or else philosophy departments, could offer regular as well as continuing education courses in business ethics with ethical theory readings, lectures, and discussions going beyond the superficial “rights, utility, and justice” hackneyed reductionism of business ethics courses in business schools. 

Decadence at Yale: Justice Thomas

For the first time since 2006, Justice Clarence Thomas of the U.S. Supreme Court spoke during oral argument on January 14, 2013. Even though a quip made by Justice Scalia prompted the stealth Justice to reply, the content is nonetheless quite revealing concerning Justice Thomas's quite understandable attitude concerning Yale Law School, one of his alma maters.

The case before the court concerned a defendant from Louisiana seeking to have his murder conviction overturned. The case involved the Sixth Amendment right to a speedy trial. Backing Louisiana’s position that the defendant had received an adequate defense, Justice Scalia sought to extol the qualifications of the defendant’s lawyers; the Council of Louisiana had cited Yale Law School as "evidence" of the high competence of at least one of the defendant's lawyers. At that point, several people present in the room heard Justice Thomas remark, “Well, he did not have competent council, then.” Thomas was not entirely joking.

                                                                       Image source: time.com

Trying to account for Thomas's rare breach of his long-kept silence on the bench, the Wall Street Journal points to Yale’s emphasis on affirmative action as having embarrassed Clarence Thomas as a law student benefiting from the program in the 1970s. In his memoir, My Grandfather’s Son, Thomas writes  of his fear back then that other students might assume he had been admitted because he is black rather than because of any of his personal accomplishments. “As a symbol of my disillusionment," he wrote in his memoir, "I peeled a 15-cent sticker off a package of cigars and stuck it on the frame of my law degree to remind myself of the mistake I’d made by going to Yale. . . . I never did change my mind about its value.” Add in the fact that he would store his Yale diploma in his basement instead of displaying it in his chambers, and his castigation of his diploma's value suddenly looks like more than just opposition to affirmative action.

Although not a law student at Yale, I did take and sit in on some law classes on account of the amount of historical political and economic thought in them. Being a Midwesterner, I was not used to the intensity of passive aggression (not to mention raw anger) especially in the law school when it came to enforcing "political correctness." Had Thomas even sneezed any contempt for affirmative action, the "sharks" would have been at him in an instant. I made a comment in a class one time in support of Scalia and Thomas on federalism only to find that a feminist law student had "retaliated" against me by telling an academic administrator that I had tripped her. The administrator, who had a law degree and thus had surely taken evidence, apparently did not need any. As a white male, I must have tripped the black female. Thank God I was not a law student at Yale! Even so, my diploma is in storage.

Source:

Jess Bravin, “Seven-Year Itch: Thomas Breaks Silence,” The Wall Street Journal, January 14, 2013.