• This doesn't follow. It results from a false dichotomy: the two possible routes to a decision are reliance on past cases and personal judgments about right and wrong. A moment's reflection will disclose, to take one example, the existence of statutes.

The constitution is just a collection of words if judges don’t give it meaning, and they derive this meaning from their own sensibilities of morality.

• Another uncertain step. Perhaps they derive meaning from history, for example.

Law itself is merely morality and social values in codified form. Felix Cohen, as many do, finds disturbing a system of supposedly “logical” decision making that is based largely on “transcendental nonsense;” arguments rooted in other arguments rather than arguments rooted in fact and policy. However, Cohen also recognizes that this sort of “legal magic” is necessary,

• Are you sure? Could you have pointed at any evidence for this?

and hints at the tension between law and morality that keeps our system functioning.

• For this "hint" it would be good to have a little evidence and some discussion. I've read the piece often, and my impression is that Cohen believes a theory of ethical value and a refusal to engage in transcendental nonsense can integrate to establish a foundation for realistic law.

We have learned to keep law and personal morality separate, but we need them both, and we need their intersection in order to maintain our system of legal magic.

• But this is obviously a false dichotomy: opinions either consist of circular argument or else they consist of personal beliefs only. We need a form of analysis here that is less dependent on inflexible alternatives and the law of the excluded middle.

• It was probably more than enough to try to present two ideas in this essay. Compression is part of the reason the analysis of the first idea is weak.

• The knowledge you are talking about is not secret, consisting as it does almost entirely of public sources. It's intricate, requiring both assisted training to learn and acculturated judgment to apply. And it's licensed, requiring public demonstration of minimum skill in order to practice. Both intricacy and regulation affect the political economy of the work, but a moment's thought will disclose numerous reasons why "monopoly" is not the best model for the resulting analysis.

Just like the professional salesmen/swindlers in Leff’s Swindling and Selling, lawyers have a self-perpetuating monopoly on “understanding the law.”

• "Just like"? Leff's sellers are often dramatizing competition rather than monopoly, and the lawyer is a seller of services, but the similarities aren't close enough on that basis alone to be denominated "just likeness," and it's not clear what Leffian analysis will get you unless you are concentrating your attention on how the moment of retention occurs.

The law is so convoluted, we are shown by law school, that it is entirely impossible to navigate for someone who hasn’t learned to “think like a lawyer.” This gives lawyers a monopoly on the law that enables them to sell their interpretative services to marks (clients), in an accepted framework that no one questions as a scam.

• Very few people consider themselves skilled in cutting their own hair. Does that mean that hairdressers have a monopoly that makes their provision of services a scam? And why is monopoly (which doesn't exist here, anyway, unless one can think of 1.14 million individual licensed practitioners organized in tens of thousands of competing entities as a single unit) a demonstration of "scam"? Have you concluded, by the way, as an implication of this argument that copyright and patent are scams? Tightening the analysis here is very important, indeed crucial, to having any argument on this point at all.

Law school, in teaching us to think like lawyers, perpetuates the idea that “thinking like a lawyer” has a value above whatever tools law students were using to think with before entering law school. What we think of as the law is in essence, nothing more than the codified thoughts of lawyers, who have been trained in law school to think like lawyers. Thus, the pedagogy of law school creates a closed circle of thought, to which largely only former law students can contribute to or understand, but that is necessary to the life of every person on the planet. Thinking like lawyers allows us access to this critical monopoly that we invoke when we swindle or sell our services to people who need them throughout our careers.

• I think the draft needs trimming: I'm dubious about presenting both of these points, or some version of something like them, in the same piece at this length. But trimming alone is not enough: the arguments supporting both insights have serious weaknesses that need to be addressed. Reformulating the arguments may change their course or conclusion, to be sure, but the analysis has to be tighter to show your thinking to advantage.

Law School and Contemporary Society

By KristineVanHamersveld - 26 Feb 2009

If its true that law school doesn’t teach its pupils how to be lawyers, what does it teach us about the law? As a law student of almost seven months, I can say without hesitation that I have learned something by attending law school, even if it requires a thousand words to speculate on what that something might consist of. I’m not sure however, that I have learned how to be a lawyer, or even, what a lawyer really is. Although I have been immersed in more “law” than I can absorb, and evaluated in a way that is not conducive to absorbing it, I believe I am learning how to think about the law in a way that law professors (and presumably practicing attorneys) find valuable. If judges, law firms, and law schools did not find this kind of thinking valuable, they would recruit clerks, associates, and scholars from other fields. Instead, they chose law students, who have specialized knowledge and skills that can, presumably, only be found in law school. This short essay will focus on two facets of the specialized body of knowledge that law students glean from attending law school. First, law students must understand the complicated relationship between law on one hand, and morality on the other. This relationship becomes apparent almost immediately to law students by reading judicial opinions under the case method. Secondly, law students learn on somewhat of a meta-level about the value of their own knowledge, as “secret” and if not how to exploit that secret, merely that they must exploit the secret just as Neff’s salesman exploits his monopoly over certain goods.

Law and Morality

When justices of the Supreme Court hand down opinions that shape our law, they know they must base their decisions on past decisions, or “doctrine” so that the body of law as a whole is internally consistent. They do not, so they claim, base decisions on a personal compass of “right and wrong.” To do so would be to render law subjective and thus, intellectually impotent. But, what is doctrine but past decisions, based at some infinite beginning point on the personal opinion of the justices. The constitution is just a collection of words if judges don’t give it meaning, and they derive this meaning from their own sensibilities of morality. Law itself is merely morality and social values in codified form. Felix Cohen, as many do, finds disturbing a system of supposedly “logical” decision making that is based largely on “transcendental nonsense;” arguments rooted in other arguments rather than arguments rooted in fact and policy. However, Cohen also recognizes that this sort of “legal magic” is necessary, and hints at the tension between law and morality that keeps our system functioning. We have learned to keep law and personal morality separate, but we need them both, and we need their intersection in order to maintain our system of legal magic. Our legal system aspires to be one in which, if you know the rules, you know the consequences of breaking them. A system like this is not functional if the “rules” are based on the judge’s own personal, moral policies. Legal arguments are necessary to keep the system of law we know today functional: but, is it really functional? Judges, constrained by legal circular argument and categories such as “corporation” or “person” as Cohen points out, get cases morally wrong all the time. However, if judicial opinions consisted only of a judge writing to say he or she believes the corporation was wrong and should be punished, we have nothing to guide us in the future but the personal leanings of judges and legislators.

Knowledge of the Law as a Lucrative Monopoly

Second, we learn that law is a profession, and that as lawyers, we are valuable because we have “secret” knowledge. Just like the professional salesmen/swindlers in Leff’s Swindling and Selling, lawyers have a self-perpetuating monopoly on “understanding the law.” The law is so convoluted, we are shown by law school, that it is entirely impossible to navigate for someone who hasn’t learned to “think like a lawyer.” This gives lawyers a monopoly on the law that enables them to sell their interpretative services to marks (clients), in an accepted framework that no one questions as a scam. Law school, in teaching us to think like lawyers, perpetuates the idea that “thinking like a lawyer” has a value above whatever tools law students were using to think with before entering law school. What we think of as the law is in essence, nothing more than the codified thoughts of lawyers, who have been trained in law school to think like lawyers. Thus, the pedagogy of law school creates a closed circle of thought, to which largely only former law students can contribute to or understand, but that is necessary to the life of every person on the planet. Thinking like lawyers allows us access to this critical monopoly that we invoke when we swindle or sell our services to people who need them throughout our careers.

Are these two ideas, law and morality on one hand, and a monopoly over knowledge on the other hand related in a meaningful way? Perhaps, but perhaps not. It could be said that law school teaches us (or, at least has taught me) first what law is (a complicated mix of transcendental nonsense, and moral intuition) and then how to make a living from it (exploit the monopoly). This analysis would connect the ideas presented in my paper in a step one, step two, kind of road map to a legal career. I’ll never know if that was Columbia’s intention, or the intention of my professors, or if it is just an arbitrary observation made by a life-long student programmed to make connections between things that are more or less unrelated. In any event, I hope the thought itself, and the analysis here have some intellectual value.