| | Based on my question in class today regarding the applicability of Arnold's analysis of organizations to our experience in law school and Eben's subsequent answer that law school is likely no different from other organizations in society in that it coheres because of shared creeds and ceremonies, I thought it might be interesting if we as a group collaboratively brought to light some practices and ideas where we think we see the Columbia Law School creed manifest. If a business organization's creed is "rational business judgment" then what is ours? I think such a discussion is valuable because one of our (or maybe not, but my) goals in law school is to do some creative thinking while I am here, and awareness of the way our law school sustains itself might enable more creative thinking then if we engage the law school institution as if it was a "person" to which we can rationally appeal. So what does everyone think? What is our creed? What are some of our ceremonies? And how do they inform who we become as law students and how we go about practicing law in the future?
Arnold makes the argument that organizations take on personalities, the content of which depends both on accident and environment. The accidental features of CLS's personality will depend mostly on the personality of those who first assume control, after which the personality is very difficult to change because the same type of person succeeds prior leaders. In what ways do people find themselves influenced by the personalities of their professors either through personal interaction with them or through the way/style/bent in which they introduce legal concepts in class? One of the ways I see this happening is when professors cut off certain lines of analysis in classroom discussions. In my contracts class, in a dialogue between a student and the professor, the student articulated argument for why courts should compensate defendants for breach of contract on fairness grounds, to which the professor responded that it in his class, "fairness" is a "bad word" and that we should not use it when we construct arguments. He also interestingly noted that this was a rule that his contracts professor enforced when he went to law school. This seems to highlight Arnold's point that personalities, once entrenched, are difficult to remove because the individuals in power are succeeded by people with like personalities. | | | I think the case method has to stand out as a ritual in law school with no "rational" purpose per se. It's based, it seems to me, on the idea that the best way to learn law is imputing logical principles from judicial decisions. Most of us (and most professors, I think) know that cases, especially when our treatment of them is confined to a heavily edited appellate decisions, are a really clumsy way of figuring out how courts are going to act. But cases tend to be the lens through which view the vast majority of law, at least in the first year. This is particularly frustrating, I think, in an area like Constitutional Law. We'll spend a lot of time combing through the logic of New Deal economic power cases, desperately trying to create logical standards which make as many cases fit as possible. At the same time, we know that the political composition of the Supreme Court has way more to do the outcome of these cases than the logical veneer of their official decisions. And yet we're going to spend hours discussing cases for, literally, every second spend talking about, say, the nomination process.
The deeper question, obviously, is what sort of creed does such an anachronistic pedagogical method serve? Can't say I've figured that one out yet. But I think it has to do with lawyers still liking to pretend that we are scientists of a coherent logical body. --- Josh Divine | |
>
> |
Columbia's creed (and that of all law schools) is "Thinking Like a Lawyer." Since Admitted Students' Day, law schools tell you that they're going to "teach you how to think like a lawyer." It serves the purpose of a) making you feel like you're getting something out of this institution that you couldn't get elsewhere while b) excluding the rest of the world from this "way of thinking." They treat "thinking like a lawyer" like this higher mode of thinking, one that inherently adds credence to your arguments and gives credibility to you as a Person of Reason (or, to put it differently, a Thinking Man). It allows you to look down on those who didn't go to law school, those who didn't learn what WE learned while they were getting their MBA or Education Masters or Political Science PhD? or (god forbid) no graduate degree at all. We'll quite likely succumb to the same line of thinking sooner or later, if we haven't already (and, to be honest, I for one probably have). This is in part because we will enter a profession where we are glorified service employees, advisors to the far-more-talented, leeches attaching ourselves to those who actually have the ability to create and produce, and we will need to justify our worth, tell ourselves that there's a reason why those actually contributing to society NEED us. It's because We Think Like Lawyers and they don't. And that's why it's okay that we just spent $200K on our educations.
I do see much of what animates Arnold's dissection of the organizational organism in law schools, their creeds and their ceremonies. From my limited experience, I do think law schools are generally backwards institutions stuck in the past whose emphasis on the ability to Think Like a Lawyer works to maintain the institution in two ways: First, it justifies the expense of law school, allowing them to sell us on a skill that we supposedly can't get anywhere else. But more importantly, it allows them to absolve themselves of guilt for not devoting the time and resources to mold us into well-rounded, thoughtful, humane lawyers and instead allowing us to leave after three years equipped with only two things we didn't have when we arrived here: That Columbia JD marked on our resume and that ability to TLAL. I'm only sure that one of those two things is actually useful.
To be perfectly frank, I said "in part" (and bolded it) in that first paragraph because I think much of what I said in the preceding two paragraphs is true, but I also think it's quite a bit of hyperbole. To my mind, there might actually seem to something to this whole Thinking Like a Lawyer bit aside from all of the institutional legwork that it carries: A real ability to think logically and critically, an ability to ferret out and dissect arguments, an ability to see in the details what others don't see. I agree with Josh that if you want to learn about how law is actually made, we should be spending far more time on the sociological/political/economic/etc. aspects of law (such as the confirmation process), but I don't actually think the purpose of law school is to learn how law is actually made. For that, a sociology/political science/economics degree is far more useful. Our training is in thinking, and going through cases and their reasoning teaches us far more about that than learning about the confirmation process ever will.
Or maybe I'm just drinking the Kool-Aid and buying into the creed because it makes me feel better. Who knows.
(ps Josh, if you put your signature and timestamp at the bottom of your entry, it'll separate the entries better and make it easier to read.)
-- JaredMiller - 22 Feb 2012 |
|