-- RohanGrey - 30 Jan 2012

Very interesting article Rohan. Sums up a lot of thoughts that I (and I'm sure others) have about the process thus far. "students do more than accept the way things are, and ideology does more than damp opposition. Students act affirmatively within the channels cut for them... " I feel that a lot of the process is to fear pushing back or questioning why things are the way they are (ie how to view a case, what we should aspire too, and sometimes the way students are treated). A positive element @ Columbia (which is different from what the article mentions) is the idea that if you give a knee jerk moral argument about a case you'll be shamed. I think one of the purposes of law school is to stop students from cruching to their knee jerk reactions, but from what I've experienced so far I think as long as your knee jerk reaction can be connected to some legal element/theory professors welcome the comment.

In regards to Moglen's perspective on grades this quote shared similarities, "Grading as practiced teaches the inevitability and also the justice of hierarchy, a hierarchy that is at once false and unnecessary. If law schools invested some of the time and money they now put into Socratic classes in developing systematic skills training, and committed themselves to giving constant, detailed feedback on student progress in learning those skills, they could graduate the vast majority of all the law students in the country at the level of technical proficiency now achieved by a small minority in each institution... this hierarchy is then evident in the legal market."

Interesting to compare Kennedy's idea of schools incapacitating students by giving them training that is useful yet limited in the real world with the often repeated notion that even if a student wants to go into the public interest sector, it'd be better to go to a firm first and get the "right training". With the amount of money that students pay, why can't they get this "right training", right now?

"On one level, all of this is just high school replayed; on another, it’s about how to make partner... The problem is not whether hierarchy is there, but how to understand it, and what its implications are for political action," to this quote I would add that the problem is also to devise a way in which you maintain your sense of who you are.

02 Feb 2012 - AbiolaFasehun

I thought this was an excellent contribution, Abiola, because it took up the reference, helped people understand what key ideas you took away from the thinking referred to, and articulated the new ideas to which those ideas in turn led you.

Your connection between Duncan's idea about how to make law schools produce substantially better lawyers and my own is a shrewd one. I first met Duncan Kennedy nearly 33 years ago, in 1979, the summer before I started law school. We almost never meet now; in the last twelve years I don't believe we've been "in contact." I won't speak for his view of me, but I will say that I believe him to be a profound thinker, a Quixotic politician, and a hell of a good influence. We think alike except when we don't, which is enough of the time that whether we agree with one another is irrelevant. Duncan's ideas, about law school, American legal history, Blackstone, Cambridge politics, rent control, mass torts, people we both dislike intensely, and people we both admire very much have contributed not only to my views, but to views I don't share in the slightest. That's because he is a daring, creative, empassioned, manipulative thinker, possessed of the rhetorical power to make an idea new. Like Duke Ellington, or Ezra Pound, once Duncan has heard something and restated it his way, the thing will never be the same again. On the other hand, as he would be the first to agree, philosophers have interpreted the world in various ways, but the point is to change it.

The idea you express from where he leaves you—asking why you should need to go to a law firm "for the training" after paying so much money to be trained by this law school—is the most important question to ask of everyone who seems to run this place throughout your time here. You should ask it of your teachers, in precisely the tone you do here: If you were able to conceive what sort of life in the law you want to have, isn't the tuition you are paying the price of learning from highly-petted and highly-credentialed experts precisely the skills you need to go about having it? Shouldn't they be helping you to face the imagination test, providing you with the environment in which to discover in law school—discover effectively, through real, intensive, personal counseling, not just hear about over free pizza—what sort of life in law you want? Shouldn't they then make sure you're provided with the mixture of skills and networks you will need in order to build that life from the moment you are awarded your license? The high degree of petting and all the credentials are bullshit, and the advertising is something more malodorous than that, if they can't or won't provide you with what it takes to be the lawyer you want to want to be, in return for the very high price they are charging you.

To our colleagues the "placement" workers, you should be asking the question in another way: Isn't that 'going to law firms for the training' propaganda total crap? Isn't it true that law firms train people to be legal office workers with very limited skills outside the network of business relations maintained by the owners of the equity? Haven't they largely been buying hours cheap and selling hours dear for four generations, during which they've optimized the "training" so it produces associates in large numbers and partners in appropriately small ones? What will they teach me about the independent life I want to live, outside their enterprise or the enterprises of their clients, and what skills will they teach me that the faculty here are not already responsible for helping me learn?

To the associates you meet at the recruiting events and in the summer jobs you shouldn't be taking: what has this law firm trained you to do that makes you more capable of doing the kind of law practice that really interests me than you were when you left law school? In other words, what has happened to you that I would want to happen to me if I used this firm as a springboard, the way I'm supposed to believe firms are springboards? Who do you know who has successfully used the firm as a springboard, and how was it done? Why aren't you doing it?

None of these is a rhetorical question. These are real inquiries that have real answers based on what people know and how they interpret the world they know better than you. By listening actively, hearing what they say and how they say it, weighing the implications of their views against the implications of others' views, you can frame your own judgments.

But, as Duncan would probably say if he were here with us at the moment, the point of interpreting the world is that an interpretation properly presented can change it. That's when we get to the power of rhetorical questions.

So then, collectively, through your student government and through your own direct action, to the law school collectively: its faculty, who are supposed to govern it; its alumni, who are supposed to support its growth and yours; the university, which seeks to embrace and profit from it: Are you committed to making the changes you need to make in what law school does to provide us with the education relevant, to now as a moment of profound change in our profession and to us as individuals seeking to develop skills to meet our social goals and priorities as practicing lawyers? If not, how dare you take all this money from us, driving us deep into debt in a very bad economy, while the jobs that prior students used to repay this debt are vanishing in the reorganization of the profession? Do you not fear the effect of our displeasure if you cheat us? (990 words)

I appreciate the kinds of questions Eben is encouraging us to ask, but I'm not angry enough or skeptical enough at the law school system or at this particular law school to do so (at least not yet). I was trying to figure out why this is, when other people on the class board are clearly starting down the path of critically evaluating what law school is actually giving them and what they're getting out of it. Thinking about it, one explanation for why I feel this way, as opposed to angry or cynical or ready to agitate for change, is that I'm conditioned to participating in an education system and economy that has always treated me this way.

At my liberal arts university, we were expected to (and I was required by my major to) take unpaid internships to "round out" our educations and make us marketable for jobs. Why weren't we marketable to begin with, as a very function of being students at that "top ten" university, and why did the university perpetuate a system that is so inherently unfair to who couldn't afford to work for a summer without getting paid? I then worked for two years at a think tank, but was told repeatedly that I would not be able to promote up to a more substantive position without going to graduate school. It seems a pretty common theme amongst my friends, but I allow that there's some homogeneity in that group, that graduate school is necessary to get to the next step in our careers and do the kind of work we want to do.

I guess I've just come to expect or believe that I have to pay my dues in various ways and that this is just the way "the system" works. I'm sure that there are other factors playing in to why I'm not incensed (I tend to be fairly risk-averse, I don't actually feel like I have time or energy to care about the "big picture" right now) but mostly, I just accept the way things are. I understand that revolutions don't often happen when people are willing to accept their own exploitation, but I actually can't see an alternative.

-- JessicaWirth - 06 Feb 2012

I found this provocative and enjoyable. A few quick points (I apologize for the lack of formality and for some of the snark, but we all know formality is just a tool of the hierarchy):

1) My reaction to this article shares something of my reaction to the lectures in this class. It's not that bad! I've liked law school so far. I've liked the people, liked the material, liked New York.

2) How much of what Kennedy talks about has to do with most law students being in their early-to-mid twenties? I'd be curious to see if older students have had significantly different experiences.

3) "It's like high school"- I've repeatedly gotten that vibe about law school, for better or worse. I enjoyed high school but don't really want to repeat it.

4) Kennedy writes about this near the end of the article, but it's worth bringing up again -I think he may be dramatically over-estimating his own privilege as a white male Harvard professor. One of the pitfalls of analyzing class/hierarchy is seeing everything through that lens [or lense? never sure]. Especially if you are at the top of that supposed hierarchy.

5) Is it true that law professors are mean to their secretaries? People who are mean to their secretaries are horrible.

6) Abiola, I agree strongly with your last point. This is especially an area where I'd be curious if older students feel differently.

-- ShakedSivan - 02 Feb 2012

Very interesting. Reading Kennedy, and thinking about our discussions in class, I am starting to feel that many of the skills I developed during my undergraduate degree are being pushed aside. Law school is focused on undoing what was done – subverting critical thought, inquisitorial natures, and activist proclivities developed in undergrad. During my liberal arts education, I was encouraged (albeit, perhaps not often enough) to think radically and engage in critical analysis. However, as Kennedy states, the casebook method of learning and adherence of legal formalism precludes this. We are taught that our “reaction to the hot case is childish” and are directed to restrain emotion and overt ‘political’ enthusiasm and ignore our gut reactions to what we may see as reprehensible moral wrongs. In doing so, we are trading the “equitable intuition” instilled in many of us at liberal arts colleges in favor of the rigid, black-and-white ‘logic’ supposedly valued by THE LAW.

In addition to being taught to curb our emotional reactions and political ideals, we are forced, as Kennedy highlights, to distinguish law from policy - to focus only on the often “circular, question-begging, incoherent, or so vague as to be meaningless” transcendental nonsense that we are meant to obtain from our reading of cases. These legal fictions we are meant to distill and memorize are not grounded in reality, but exists in a nebulous, intangible vacuum that we – soon to be ‘professionals’ – call THE LAW. I was also taught in undergrad – and still believe - that law cannot be divorced from policy; that the inputs breathing life into the law, dictating its creation and form, and the outputs instilling it with meaning, consequence and effect ARE political. If we want to know what the law really is, we need to consider what defines, creates and impacts its formation and to determine the tangible effects it has on society.

The casebook method of learning prohibits free thought and practical skill development. As Eben has pointed out, we spend hours reading each week but we do not retain or remember - we listen yet we do not hear. When asked recently in an interview what my favorite law school class is, I said Legal Practice Workshop. Unfortunately, I think, not enough attention is paid to this style of learning. LPW is ungraded (God forbid), and consequently, we as students – indoctrinated to be obsessed with the hierarchy of grades – tend to take it less seriously than our other classes and pay less attention. We are also not given enough feedback or direction on our work, or REALLY taught how to improve our legal analysis or writing abilities. The result is that the only (potentially) practical skills we are learning fall by the way side and are not honed and cultivated as they could and should be. As Kennedy says, “if law schools invested some of the time and money they now put into Socratic classes in developing systematic skills training, and committed themselves to giving constant, detailed feedback on student progress in learning those skills, they could graduate the vast majority of all law students in the country at the level of technical proficiency now achieved by a small minority in each institution”. I think that classes that push us to hone in on our intuitions, investigate and provide basis for our judgments, and justify our conclusions and assumptions with facts and examples, would be more useful than reading and regurgitating cases from 19th century England. It would be interesting to see what would happen if we had more classes like LPW, that at least – on the surface - aim to encourage self-direction, novel legal argument and reasoned analysis.

-- MeaganBurrows - 05 Feb 2012

I find it curious that Kennedy begins by denigrating the “trade-school” approach of law schools, when as Abiola points out law students are rarely prepared to practice law immediately following graduation. There are valid arguments against adopting a purely trade-school approach, such as that it is wasteful to devote an education by top legal minds to addressing day-to-day skills that will inevitably be picked up anyway. However, even accepting that, it continues to surprise me how little the educational practice of law schools seem to reflect recent (or even distant) developments in educational pedagogy. If any high school social studies student-teacher in a reputable education program tomorrow proposed a legal studies unit consisting of weekly lectures working their way through a huge textbook of identically presented case extracts, followed by a single four-hour exam to test legal reasoning and rule memorization, they would be laughed out of their advisor’s office. Yet this is the standard pedagogy for almost all core 1L classes around the country.

Moreover, by placing the emphasis almost solely on subject knowledge at the expense of pedagogical training, administrators perpetuate the myth that “anyone can teach” and that responsibility for learning difficulties should be placed on students themselves, rather than on the teaching practices of the professors. In part, this phenomenon may reflect a cynical (or perhaps realistic) acknowledgment that the brightest legal minds largely don’t value the teaching element of their academic responsibilities sufficiently to put the necessary effort into adequate teacher training and creative lesson planning. Like Teach for America, law school administrators may perceive a tradeoff between attracting the best minds and the most dedicated teachers, and decide consciously to target the former by lowering the standards of teacher training required prior to admittance as a teacher. The failure here is, I believe, one of law school administrations, not individual law professors, much as the hyperextension of TFA beyond its initial mission as a alternative source of assistant and substitute teachers is the fault of overzealous education-reformers and politicians rather than the dedicated and self-sacrificing TFA’ers themselves.

On that note, I only partially agree with Jessica’s claim that the “education system and economy are geared that way.” In many respects, such as the overemphasis on high-stakes testing, and the use of employability and earnings statistics as a proxy measure of relative school performance, law schools have been in the vanguard of a market-oriented, technocratic crusade against liberal, progressive or holistic educational models. In recent years this crusade for “competition, accountability and standards” has reached as far as pre-kindergarten, driven in part by a convergence of values between the wing and the so-called “pragmatic centrists” within the Democratic Party. One only needs to consider the psychological, academic and career implications of their law school transcript – which separates “winners” from “losers” based on single-letter grades determined by inauthentic assessments of poorly defined standards – to appreciate why so many teachers from New Jersey to Wisconsin are standing up in opposition to the educational reforms enacted in recent years that are leading in that direction.

On the other hand, as Meagan pointed out, the deconstructive legal analysis emphasized in most classes seems to actively suppress – or at best, marginalize the value of – individual judgment based on one’s experiences and values. In this respect law school is regressive, telling us that we “have much to learn” rather than “much to contribute,” while education professors around the country are increasingly teaching their newly minted students to adopt the opposite approach. Like Meagan, I found LPW to be the most useful class from last semester, due to its (admittedly not strong enough) emphasis on individual skill building, genuine problem solving and constructive legal writing. Equally, the most interesting experiences in my other classes tended to involve questions that were either tangential or beyond the scope of a black-letter law class, because they were the questions that were actually relevant to my interests, or interesting from a theoretical legal point of view.

I remember Eben said early in the course that if he had his way one of the first courses we would take would be on “Persuasion.” I wonder what other people would have in their ideal 1L curriculum? Off the top of my head I would imagine perhaps the following:

1. Written Communication (including a critical evaluation of writing forms, i.e. the implications of rigid memo/brief formats and bluebook-style referencing) 2. Oral Communication (rhetoric, as well as how to target specific audiences i.e. clients of various backgrounds) 3. Legal Dispute Resolution (litigation-to-mediation, as well as pre-emptive i.e. effective contract formation and statutory construction) 4. Legal Research (self directed, project-based, perhaps utilizing on “Law and ____” approach to content-selection) 5. Jurisprudence 6. Lawyering across Multiple Legal Orders (how to navigate different sources as well as levels of law) 7. Client Advocacy Clinic (how to navigate legal system to provide real outcomes for your client) 8. Empirical Analytic Methods in Social Science

What would you have? (824 words)

-- RohanGrey - 06 Feb 2012