Oh No You Don't!
Prof. Bill Long 11/3/05
A Response to Kennedy's Attack on Law School Pedagogy
In another essay I argued that Duncan Kennedy's classic 1982 piece on "Legal Education as Training for Hierarchy" kicked off the Critical Legal Studies movement by suggesting that not only the law school experience but also American institutions in general ought to be subject to the withering criticism which he had directed toward the law school. The purpose of this essay is to provide a few of his paragraphs from that article and then summarize Dean Paul Carrington's 1984 response to Kennedy, a response that basically told those sympathetic with CLS that they ought to leave the legal academy.
Kennedy on Legal Education
Kennedy's prose, while not always hitting the mark, is inimitable. Here are a few excerpts:
"There is also [in the mind of the law student] the issue of social mobility. Almost everyone whose parent were not members of the professional/technical intelligentsia seesm to feel that going to law school is an advance in terms of the family history. This is true even for children of high-level business managers, so long as their parents' positions were due to hard work and struggle rather than to birth into the upper echelons. It is rare for parents to actively disapprove of their children going to law school, whatever their origins. So, taking this step has a social meaning, however much the student may reject it, and that social meaning is success..."
He argues elsewhere in the article that this desire for success soon overcomes the initial interest in "doing justice" that was so much a part of original motivation for law school, and makes students enter into "willing service in the hierarchies of the corporate welfare state." He also speaks aobut the "body of implicit messages" students receive from teachers at law schools:
"Teachers teach nonsense when they persuade students that legal reasoning is distinct, as a method for reaching correct results, from ethical and politcal discourse in general (i.e., from policy analysis). It is true that there is a distinctive lawyers' body of knowledge of the rules in force. It is true that there are distinctive lawyers' argumentative techniques for spotting gaps, conflicts, and ambiguities in the rules.....But these are only argumentative techniques. There is never a 'correct legal solution' that is other than the correct ethical and political solution to that legal problem. Put another way, everything taught, except the formal rules themselves and the argumentative techniques for manipulating them, is policy and nothing more. It follws that the classroom distinction between the unproblematic, legal case and the policy-oriented case is a mere artifact: each could as well be taught in the opposite way."
In short, law school teaching infantalizes and maims students. It deceives them into thinking law is "unique" and that "unjust" results are all right, as long as you can develop "legal" explanations for them. Students are duped into being toadies and servants of the corporate welfare state.
Dean Paul Carrington, of Duke University, didn't like Kennedy's approach at all. He felt it smacked of what he called "legal nihilism" and that the only ethically responsible thing a legal nihilist could do was to resign from teaching at a law school. A theological seminary ought not to be filled with professors who denied the existence of God; why should a law school tolerate those who seemed to think that law was nothing more than politics?
He couches his essay, entitled "Of Law and the River" (34 J Legal Ed 222 (1984)), in literary terms. Indeed, the first several pages of the essay are a delightful "read." He talks about the similarities of law training to training as a Mississippi River steamboat pilot, at least as narrated in Mark Twain's Life on the Mississippi. He says:
"The power of pilots, like the power of lawyers, derives in part from the esoteric nature of the data that informs their professionalism. Pilots, like lawyers, dramatized their technocracy by cloaking work in a professional and mystic language that excluded laymen from understanding. Twain understood that language became for pilots, as for lawyers, a source of power."
One of the harsh realities of training for a profession, however, is that you lose the romantic notion of the very thing you are studying. For example, Twain never looked at the river in the same way once he learned the technical facts of the trade. He said:
"I had lost something that could never be restored to me while I lived. All the grace, the beauty, the poetry, had gone out of the majestic river!"
Instead of romantic description of the sun glimmering on the lazy river, he thought in the following way:
"This sun means that we are going to have wind tomorrow; that floating log means that the river is rising, small thanks to it; that slanting mark on the water refers to a bluff reef which is going to kill somebody's steamboat one of these nights, if it keeps on stretching out like that..."
The similarities between teaching a person to be a pilot on the river and teaching a person to be a lawyer are legion. We might think that the process is hard, that it is inhumane, that it is often valueless, but we can't lose sight of the fact that we are actually keeping people off the hard shoals of life. But the sine qua non of law school teaching is the necessity for law professors to believe in their own professionalism. If they suggest or believe that "law is a mere deception by which the powerful weaken the resistence of the powerless," then have fundamentally lost belief in law. How can such "nonbelievers" teach the next generation of law students?
He goes on:
"The nihilist teacher threatens to rob his or her students of the courage to act on such professional judgment as they may have requried. Teaching cynicism may, and perhaps probably does, result in the learning of the skills of corrpution: bribery and intimidation. In an honest effort to proclaim the need for revolution, nihilist teachers are more likely to train crooks than radicals. If this risk is correctly appraised, the nihilist who must profess that legal principle does not matter has an ethical duty to depart the law school...."
What we need are teachers who are able to 'keep the faith of the secular religion" of law, despite temptations to do otherwise. "We love law not because reason requires it, but because our commitment to our discipline serves the needs of the public to whom, and for whom, we are responsible."
Well, what do you make of this tempest?
Copyright © 2004-2007 William R. Long