Paul L. Caron

Tuesday, December 18, 2018

Law Schools Are Bad For Democracy

Chronicle of Higher Education op-ed:  Law Schools Are Bad for Democracy, by Samuel Moyn (Yale):

They whitewash the grubby scramble for power.

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. ...

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.

Legal Education | Permalink


When an individual uses their own resources to help other individuals they are free to use their own conceptions of what is good and what constitutes help, since those who they seek to help can reject their assistance (provided the help is not criminal in nature). But seeking to do good by using the law, the power of the state, is seeking to use force to implement one's own conception of good whether those who are to be "helped" want that "help" or not. It is totalitarian and good for no one.

Posted by: mr. burns | Dec 20, 2018 10:39:36 AM

Well, law schools have lots of classes about "social justice." Some even from a conservative perspective. And they all teach skills and knowledge that can be used for good.

Selling out is older than democracy. Certainly older than law schools. And an informed public is a classic "check and balance."

But to let a non publicly accountable insider organization - such as the ABA - regulate government required law schooling seems less than ideal.

And the expensive burn-a-bachelors-degree-before-we-let-you-in rule is decidedly elitist and corrupting. Why not let the kids take a reading and writing test instead so they can actually afford to work for the causes in the glossy recruiting brochures?

Posted by: Anand Desai | Dec 19, 2018 3:58:40 AM

Law schools have largely become a crowbar for the Left to use to pry their way into the societal and political power structure and inject their collectivist ideology. The judicial system is particularly susceptible and prone to cater to this suicidal nonsense.

Posted by: ruralcounsel | Dec 19, 2018 3:42:50 AM