Law in Contemporary Society
-- JasonLissy - 06 Feb 2009 Explaining Moglen’s Optimism Through Arnold

Prof. Moglen commented during our discussion of the choice/non-choice composition of human existence that he is optimistic about the current economic climate’s potential to reshape the way in which we conceptualize lawyering. My understanding of this position is that with “biglaw” appearing law students are increasingly receptive to the prospect of abandoning the law-as-business, firm-as-profit-maximizer paradigm. Arnold provides support for, and valuable insights into, this prospect.

The Deterioration of the Biglaw Creed?

I understand Arnold’s “creed” to be a group’s fundamental ordering/unifying principle. It seems fair to say that the aspiration or resignation to biglaw practice unites most law students of elite institutions and in this way functions like one. Our law school experience reinforces this idea that striving towards elite-firm placement is a significant, if not the preeminent, purpose of our attendance. Firm-named classrooms and swishy firm receptions subtly cultivate “loyalties and enthusiasms” (10) for and help to entrench the “Vault 100” firm as our employer-hero. For many, peer evaluations will hinge on the prestige of one’s summer associateship.

Yet, as Arnold notes, when “a ruling class ceases to perform the functions necessary to distribute goods according to the demands of a people,…” - when stealth-layoffs and offer-revocations breed distrust in the minds of firm-hopefuls – “a new class appears to satisfy those demands” (38). Arnold continues, “probably the only way in which mythologies actually change is through the rise to power of a new class whose traditional heroes are of a different mold” (38).

Arnold would not deny the opportunity for creedal change in the present economic climate. His observations furnish two insights. First, when a ruling class fails to meet the demands of a population a new class emerges. While the mechanism for class emergence is not precisely specified, Arnold’s terminology suggests that shared, but atomized grievances may be insufficient to prompt change (that is, as Greg suggested, to the extent that any individual that recognizes the choice/non-choice dichotomy of human existence can reshape the determining social forces). Perhaps the mechanism falls in the realm of non-choice and is therefore a non-issue, as we have gravitated to LCS for overlapping reasons. Secondly, our traditional heroes must be of a different mold, which strikes to the heart of my and many others’ purpose for taking LCS: to find the type of hero that law school thus far has failed to sufficiently offer. Has anyone formed such a concrete vision?

Are Cohen and Arnold’s Prescriptions Situational?

Both Arnold and Cohen provide pragmatic prescriptions. In one way or another the enlightened attorney is to co-opt predominate forms to advance novel ends. For Cohen, the realist lawyer adopts the language of transcendental nonsense to realize desired consequences. For Arnold, those who describe how institutions actually work are labeled “cynics” and make believers uncomfortable (32). While Arnold does not say as much, making believers uncomfortable is self-defeating in so far as it induces reflexive criticism and leads to further marginalization. Instead, according to Arnold cunning lawyers must comply with the “taboos and customs of the tribe” so long as “the words [practices]” have emotional relevance” (205). These strategies may be of some utility in economic boom-times when support for biglaw creeds/myth runs high. Arnold conditions his prescription - “so long as the words have emotional relevance” (205) – and in doing so leaves us to our own creative devices for situations like the present when the profit-maximizing firm-partner seems to many less a hero and more a demon. Perhaps Arnold would agree that confrontation and fostering discomfort in shaken believers provides more mileage in the effort to reshape creedal ideals.

(Note: I tried to indent my text by tabbing, which did not work. How do I format appropriately?)



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r2 - 07 Jan 2010 - 22:48:34 - IanSullivan
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