failures of the legal academy

Because of this blog, I get an email every other month or so asking about law school- should I go? where should I go? etc. My responses are usually, frankly, fairly negative- I’ve had a fairly decent experience, but I think that is in large part for fairly unusual and idiosyncratic reasons. Via madisonian.net I stumbled on one paper and one collection of papers that I’ll now be recommending to anyone who wants to go to law school.

The first is “Legal Education as Training for Hierarchy“by Duncan Kennedy. There are a lot of damning (and quite a few not-quite-as-damning-as-the-author-thinks) bits in the piece, but I think perhaps the most dead on was this one:

The point of the class discussion will be that your initial reaction of outrage is naive, non-legal, irrelevant to what you’re supposed to be learning, and maybe substantively wrong into the bargain. There are “good reasons” for the awful result, when you take a legal and logical “large” view, as opposed to the knee-jerk passionate view; and if you can’t muster those reasons, maybe you aren’t cut out to be a lawyer.

Of course, as the article points out, there are multiple ways you could teach this- you could teach it with context, pointing out that your instincts are valid and giving examples of how justice can still be done within the context of the law; or you could teach it in the most soul-crushing, status-quo-reinforcing manner possible. No cookie for guessing which one happens in law school. Even if not all of the author’s assumptions seem plausible¹ he’s dead on about how the law school experience is structured and the pernicious impact it has on how even well-meaning people react to the status quo.

The second set of papers is in the most recent Georgetown Law Journal, centered around a piece called ‘Spam Jurisprudence‘ by Pierre Schlag and a series of responses to it. Again, I recommend them to anyone entering law school. First, because they are not an easy read², so if you can wrap your head around them you’re probably ready for law school. More importantly, they discuss a serious problem in legal academia- the lack of impact on the real world, and the lack of intellectual challenge involved in most academic legal work. Again, the paper is almost a caricature of the reality – Posner’s response in particular does a good job of pointing out areas where there is real intellectual ferment in today’s legal scholarship – but Schlag does point out some serious structural issues that will frequently cause disappointment if you come in with the idea of challenging current thinking through legal research and writing.

Of course, neither of these articles come with practicable solutions attached, in large part because (as both authors point out) these problems reflect the problems of the profession³, and so can’t be solved in isolation. But interesting to think about anyway.

1. I do think that there are significant differences between both students and professors, even if our hierarchies brutally overvalue and usually mis-measure those differences [↩]
2. I’d go so far as to say ‘bizarre’ read, perhaps entertaining if you get the in-jokes [↩]
3. maybe part of the plan should be fixing the ABA? [↩]