[Marxism] Law Schools Are Bad for Democracy

Louis Proyect lnp3 at panix.com
Tue Dec 18 06:34:40 MST 2018

Chronicle of Higher Education Review, DECEMBER 16, 2018  PREMIUM

Law Schools Are Bad for Democracy
They whitewash the grubby scramble for power

By Samuel Moyn

Yale Law School, where I teach, was roiled by the confirmation process 
of Brett Kavanaugh. The usual disagreements about the politics of the 
day that are healthy in any community were exacerbated by a sense that 
this was not just one more confirmation fight but an epic battle over 
the future of the country. Students, in particular, denounced the school 
for its complicity with elite power and the nonchalance of its 
commitment to institutional and national justice. And when the 
accelerant of personal-misconduct charges was thrown into the blaze, the 
school began a period of self-examination.

This dispute raised a lurking question: What is law school for? How does 
it serve the individual aspirations of some of our most gifted young 
people, and the high ideals for social justice that many of them care 
about? "Elite institutions get so satisfied," my colleague Harold Hongju 
Koh observed in The New York Times, in the midst of the controversy. 
"Who are we? What do we stand for? Are we being true to our values? It’s 
a constant struggle for defining the identity of the institution as 
times change."

Some might be forgiven for thinking that there is an obvious answer to 
the question of what law schools, even elite ones, are for. Their 
purpose is to make lawyers, especially practicing lawyers. And for 
faculty members lucky enough to teach at such schools, they are not just 
for schooling but also for scholarship.

Such easy answers do get at the core of what law schools are supposed to 
be about and therefore how they ought to be organized. But they also 
miss a lot. Many students believe that they are doing something more 
than enrolling in a trade school to solve other people’s legal problems 
for (often tremendous) pay. Students are also hoping to advance or even 
incarnate certain ideals of political and social justice — ideals that 
professors, too, often talk about. The Kavanaugh crisis exposed a 
longstanding worry that law schools, and especially elite law schools, 
are failing to advance those ideals. Law schools allow you to do well. 
But it is harder to establish that they allow for doing good.

The question is not new. It has been a half-century since Duncan 
Kennedy, then a Yale law student and later a long-serving Harvard Law 
School professor (recently retired), accused law schools of functioning 
mainly to reproduce social hierarchy. No one has satisfactorily faced 
his challenge. Doubts still swirl around elite institutions and within 
the souls of many of their denizens. And with democracy in open crisis, 
now seems as good a time as any to ask again what law schools are for, 
to answer as realistically as possible, and to work to change what they 
can offer to their society, their world, and their own students.

Power players and grizzled veterans often do not understand how 
profoundly newcomers or outsiders to elite law schools — I count myself 
a little of both, but I mean first-year students — are prone to worry 
about why they are there. Students engage in constant self-questioning: 
Can I reconcile my politics with my self-interest? Am I really devoting 
myself to a career that will lead to systemic change, or to one that 
will reproduce hierarchy instead? The ethical struggles of elite law 
students might seem the pinnacle of first-world problems, but they are 
real nonetheless.

And while the question of whom law school really serves can haunt 
individual consciences, it drives rationalization at the institutional 
level, too. Every year, law schools produce glossy booklets and press 
releases advertising their social virtue. Nowhere is this image 
management more troubling than when it mystifies the real function of 
law schools in reorienting the hopes and even reshaping the 
personalities of the young people who enter them. Having entertained 
inchoate dreams about social transformation, the students themselves are 
transformed the most, especially when they accept a set of beliefs about 
how the world is likeliest to change — through a politics of marginal 
legal reform by insiders to the system. That is, if the world can change 
at all.

Data show that large numbers of students entering law school say that 
they hope to work in the public interest, but then end up working for 
large firms instead — though debate rages about when precisely they 
defect and why. Debt burden is one explanation, but informal expectation 
and institutional pressures are probably more to blame. And the 
realities of this "public-interest drift" fit very poorly with the 
self-advertised rationales about how legal training in its current form 
serves social justice.

To take one example among many, consider the clinical revolution that 
has transformed American law schools. Today, unlike just a few decades 
ago, almost no students are interested in high theory as a mode of (or a 
rationalization for) elite training. Instead, they sign up in droves for 
clinics that provide access to social-justice practice. The schools call 
it "experiential learning." Students might try to get people out of jail 
or bring a case to an international human-rights court.

Rarely asked, however, is whether the clinical revolution is actually 
about changing the world. For individuals, it might help provide an 
alibi for the grubby scramble for advantage. If your social-justice work 
harmonizes so easily with elite credentialing for power and wealth, is 
it good for society? Or even for you? One can question the institution’s 
rationalizations, too. Clinical activism can serve to launder and 
legitimate injustice. Before it was censured by its community for 
celebrating the nomination of its alumnus, Yale Law School praised 
itself for the work of its clinics in litigating the travel ban, even 
though Kavanaugh got his seat on a court that ratified President Trump’s 
policy. On balance, what was gained? Students got a stint fighting evil, 
and the school got a press release, but it is not obvious that much 
self-congratulation is in order.

The creditable desire among students for hands-on experience in law 
schools typically reinforces a familiar but troubling image of how 
lawyers can make change: by convincing judges to do the right thing. At 
elite law schools like Yale, the Kavanaugh nomination served as a flash 
point because the judiciary is still so central to the implied politics 
of legal education, which depend on a belief that change happens when 
lawyers convince judges to make it happen. Events have now put this 
belief to its harshest test in a century.

Law school allows for doing well. But does it allow for doing good?
It is not just that, from the first day of law school, students are 
taught to think about the law from the perspective of the judiciary 
(rather than the legislature or the people), by reading cases and 
pondering whether judges decided them correctly. It is not just that, 
habituated to compete with one another and in doubt about what to do 
with their legal training, students quickly prioritize clerking for the 
higher judiciary after law school as the sweetest plum, or at least the 
most tangible prize. It is not just that, in their increasingly routine 
clinical self-assignments, students are taught that systemic reform 
comes, if at all, through seeking friendly judges who will not merely 
reproduce injustice in an otherwise hostile environment. It is not just 
that judges visiting campus are treated like the princes of law’s empire 
(as the philosopher Ronald Dworkin adoringly called them), with 
obsequies paid and red carpets rolled out whether they are good or bad.

Rather, now more than ever, the fear is that none of these conventions 
of law-school life are justifiable given the increasingly obvious fact 
that a judicially oriented politics makes little difference, except to 
the right. Earl Warren’s Supreme Court is a distant memory, and it is 
not even clear how much change it made in the first place. With Anthony 
Kennedy’s departure, the days are gone when one justice on the Supreme 
Court might switch sides on occasion and allow for the preservation of 
whatever gains a judicialized progressivism once allowed.

With an increasingly Trumpified federal judiciary, it is harder to 
believe that there will be many silver linings in lower courts’ rulings. 
Even as strategic legal activism explodes among conservatives, it 
becomes more and more difficult for others to pretend that the system 
produces enough liberal results to justify learning to eke them out.

To respond to this disheartening situation, law schools will need to 
consider how to reset their missions for those students no longer able 
to suspend disbelief about how their ideals and their training fit together.

The point is not to reorient law schools entirely. Their primary task 
will always be the production of lawyers for the bar — a core commitment 
with which other agendas will necessarily fit uncomfortably. Law schools 
will never be staging grounds for fundamental social change when they 
are organized to advise private dispute resolution and administer extant 
forms of public justice.

And a certain amount of hypocrisy and rationalization is the essence of 
most people’s ethical lives in all times and places, especially when 
those people are at the top of unjustifiable hierarchies. "The important 
thing," a moralist once remarked, "is not to be cured, but to live with 
one’s ailments." Ethically pure law schools are not an option. An age in 
which American elites have remedied some exclusions while leaving many 
others intact or even more entrenched, and in which "meritocracy" is a 
rationalization for unprecedented elite ascendancy, is one we have to 
inhabit indefinitely. Sure, it is hypocritical when Yale Law students, 
each and every one of whom chose to enroll because the institution is at 
the top of the rankings, indict the school’s proximity to power and 
prestige. But nobody is above hypocrisy.

Judges visiting campus are treated like the princes of law's empire, 
with obsequies paid and red carpets rolled out.
Yet to observe that there are constraints on the reimagination of law 
schools is not to deny any possibility for change. There are two 
especially imperative fixes, one focused inward and the other outward.

The first involves how law schools prove to their newest entrants that 
the institutions really are the pluralistic spaces they nervously claim 
to be, rather than factories for mass conversion of pliant subjects into 
large-firm lawyers. In particular, if law schools and law students were 
more open about their elitist compromises, there could be more 
discussion of how all of their members manage their consciences. And 
schools simply need to find better ways to send annual waves of trained 
lawyers into legal practice — including large-law firm practice, where 
many students understandably seek the highest salaries — while 
counteracting the undertow that often sweeps the less willing or the 
uncertain toward the same outcome.

And for the sake of our national life, law schools must take up the duty 
of inculcating in their students and in the public a critical attitude 
toward the operations of "the rule of law" in general — including a 
critical attitude toward the routine exaltation of the judiciary.

In the first year, law-school curricula still revolve around the 
mystique of common-law judging, and the priority of private law subjects 
such as contracts, property, and torts. When institutions do require a 
public-law course beyond civil procedure in the first year — as Yale 
does with constitutional law — such courses often amount to little more 
than an analysis of judges and their capacity to damn and save the 
American polity. It’s no wonder that so many students, having entered 
with unclear plans, begin at the end of the first year to dream of 
clerking for a judge when they graduate, and not only because it will 
afford them such rich dividends on the large firm market. (Nowadays, 
firms will pay you a $400,000 bonus if you join them directly from a 
Supreme Court clerkship.)

As dusk turns to night for progressive activism in the courts, law 
schools need to pivot away from judicially oriented activism to make 
room for a new kind of engagement with the public. What is lacking in 
public discussions about law school is attention to what it means for 
legal elites to serve the democratic conversation about how the people 
rules itself. Rather than burnishing the credentials of law and its 
royal judicial stewards, we should insist on the centrality of the 
people in a democratic legal order. If elite students are forced into a 
dilemma about how to preserve their sense of justice even as they 
embrace extraordinary privilege, it is, first and foremost, because 
society allows law schools to endlessly reproduce elite ascendancy. But 
the institutions themselves can force some change from within, in part 
by explaining to the people how the law rules them.

Rather than romanticizing it as a source of hope, law schools ought to 
be committed to figuring out why so many of our fellow citizens are 
disgusted by what "the rule of law" is providing them. Instead of 
suffusing the legal system with legitimacy, in short, law schools must 
help demystify it so that the law’s disservice to the interests of 
ordinary people is clearer to them. Eventually, law schools should 
produce advisers for citizens who are committed to challenging current 
forms of elite power. They might become idea factories for legislative 
reform if and when those citizens win. It is a lesson in humility for 
lawyers themselves, but the truth is that the law forges dependable 
tools for social improvement only when democracy takes the lead rather 
than being treated as a wayward force that legal elites must help 
contain for the sake of order and sanity.

"The serious law student," one of my own teachers, the Harvard Law 
professor Roberto Unger, wrote two generations ago, "does not want 
merely to have a job." She hopes, instead, to "find a realistic version 
of … transformative commitment." As Unger worried, however, this fateful 
choice to hedge your bets typically reveals itself as both a 
self-fulfilling prophecy and a raw deal you cannot refuse. "With each 
move forward," he explained, "the opportunities for deviation seem 
narrower and the risks greater. In exchange for the equation of realism 
with surrender, the social order promises an endless series of rewards." 
With your dream of changing the world dismissed as a juvenile 
distraction, you resolve to enjoy your life on top.

What if the truth of law schools is that their main social function, 
aside from producing the next round of elites, is that they buy off 
those who initially doubt that perpetuating elites is what law schools 
ought to be doing? If law schools faced this haunting question more 
routinely, they might resolve to demystify the law as a first step to 
reinvigorating democratic life. This would matter not just for the 
ethical conundrums of a handful of elites, but also to the country and 
the world.

Samuel Moyn is a professor of law and of history at Yale University.

More information about the Marxism mailing list